YIP KWOK MAN v. CHAN KIM KWAN

DCPI2598/2014

[2018] HKDC 693

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.2598 OF 2014

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ASSESSMENT OF DAMAGES

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1.  By writ of summons issued on 21 November 2014, the plaintiff seeks to recover against the defendant damages for personal injuries he sustained arising out of defendant’s assault of him on 11 July 2012 (the assault).

2.  A statement of claim was filed on the same day (the SOC) by plaintiff’s solicitors. It was pleaded at paragraphs 3 & 4 thereof that, in the assault, the plaintiff was punched few times on his head by the defendant. After plaintiff turned around and saw the defendant, he was further punched and kicked several times by the defendant. The plaintiff fell down and lost his consciousness after the assault.

3.  No notice of intention to defend having been given, interlocutory judgment was on 19 February 2016 entered against the defendant for damages to be assessed (the Judgment). The assessment of damages (AOD) now comes before me.

4.  By order of Master J. Chow dated 17 March 2016, the defendant was ordered to file and serve list of documents and witness statement as to quantum by certain deadlines, failing which he shall be deemed to have elected not to adduce documentary evidence, or to adduce witness statement, in AOD. The defendant failed to do both after expiry of the deadlines[1].

5.  By the same order, the plaintiff elects not to adduce expert medical evidence in AOD. The reports of government hospitals as to the treatment and care of the plaintiff be adduced as agreed evidence without calling the makers thereof.

6.  Pursuant to orders of court, the plaintiff filed his witness statement as to quantum in Chinese on 18 January 2017 and filed his Revised Statement of Damages (RSOD) on 20 July 2017. No Answer was filed at all by the defendant.

7.  According to RSOD, the heads of damages the plaintiff seeks to recover are: (1) pain, suffering & loss of amenities (PSLA); (2) loss of earning capacity; (3) special damages (consisting of medical and travel expenses and tonic food). They add up to $406,740. Interest is also sought.

8.  Pursuant to orders of court, the plaintiff was to draft the index of the assessment bundle and provide the same for defendant’s comments, failing which the defendant be deemed to have agreed the contents thereof, and the said index shall be lodged with court for record thereafter.

9.  By order of Master Michelle Soong dated 5 December 2017 (the set down Order), this matter was set down for AOD on 26 March 2018 using the assessment bundle prepared and lodged by plaintiff[2].

10.  At the AOD hearing before me, the plaintiff was represented by Ms Lo Yuen Ching, Juliana, of Messrs. Yeong & Co. (Ms Lo), assigned by the Director of Legal Aid. The defendant was unrepresented and absent before me.

11.  However, looking at copy covering letters produced by Ms Lo and on her undertaking to arrange the filing of the appropriate affirmations of service, I was satisfied that the set down Order, the assessment bundle, plaintiff’s written opening submission, list of authorities and plaintiff’s inter parte summons filed on 21 March 2018 (plaintiff’s summons) have all been properly served on the defendant, I therefore proceeded to hear plaintiff’s summons and the AOD in defendant’s absence as requested by Ms Lo.

12.  On plaintiff’s summons, this court gave leave to plaintiff to use only items Nos.1 and 2 of plaintiff’s proposed supplemental assessment bundle[3] at the AOD hearing before me. They are the SOC and the Judgment.

13.  On the AOD hearing, Ms Lo opened plaintiff’s case orally and by way of her written opening submissions.

14.  Ms Lo called the plaintiff as her only witness as to quantum. With my leave, the plaintiff gave his evidence in punti and adopted his witness statement. He was allowed to give further evidence-in-chief to correct paragraph 11 of his witness statement[4] and to explain the contents of certain documents relating to him found in the assessment bundle[5]. He thereafter answered certain queries of this court and was re-examined by Ms Lo.

15.  After the plaintiff’s case was closed, Ms Lo made her oral closing submissions on behalf of the plaintiff.

Analysis

16.  I have fully and carefully considered all evidence, submissions and authorities before me.

Assessment of evidence

17.  To start with, save and except for 3 summaries[6], I accept, and give full weight to, the contents of all documents produced in the assessment bundle.

18.  For plaintiff’s evidence, I have considered its inherent probabilities and watched out for inconsistencies thereof with the documentary evidence I accept above. I have also carefully observed his demeanor in answering questions of mine.

19.  First, I find the plaintiff to have exaggerated left shoulder pain and left thumb pain he complains. Had they been as frequent and serious as claimed by him, he would not, I think, have defaulted occupational therapy session at Tseung Kwan O Hospital (TKOH) scheduled on 4 September 2012 and would have sought further treatment from, say, Accident & Emergency Department (A&E Department) of TKOH. As he agreed in the box, he did not receive further treatment for the assault injuries from TKOH as from August 2012.

20.  I do not accept plaintiff’s explanation that his work as a minibus driver prevented him from seeking further treatments for such injuries as he claimed. Despite his work, he also saw fit to seek further treatments from Ear, Nose & Throat Clinic (ENT Clinic) of TKOH in 2014, and even admission to TKOH for an operation in March 2014, for his other health problems[7].

21.  Secondly, I also find the plaintiff to have exaggerated such headache he suffered and suffers as a result of the assault. Computer tomography of his brain at A&E Department of TKOH on the day of the assault showed, I note, no signs of intracranial bleeding or skull fracture. Instead, it showed bilateral lacunar infarcts which was not related to the assault and which, the plaintiff reluctantly admitted in the box, existed before the assault.

22.  Again, had the plaintiff suffered headache as frequently and serious as he claimed in his witness statement, I fail to see any reason why he did not seek treatment for the same for the last 5-6 years as he admitted in the box. In any event, he admitted in the box he got relief after taking painkillers and such headache was so minor today that he did not seek treatment for the same.

23.  Thirdly, I do not accept that the injuries the plaintiff sustained in the assault adversely affected his working performance as a minibus driver as he claimed. In any event, they never, I find, caused him to suffer any reduction in earnings or caused him to cease working as a minibus driver as he claimed.

24.  By way of correction of paragraph 11 of his witness statement, the plaintiff orally confirmed in the box by way of further evidence-in-chief that, after expiry of his 19-day sick leave, he continued working for his employer as a minibus driver for as long as another 2.5 years until about December 2014.

25.  Looking at his earnings records produced before me[8] and considering daily earnings level he said in the box, the plaintiff apparently worked steadily for his employer during that 2.5 years without taking much working days off[9].

26.  The above records do not, I think, sit well with plaintiff’s claims that he could not drive safely nor focused on his driving duties as a result of the assault. Had it been so as he claimed, his employer would unlikely, I think, to have continued employing him for another 2.5 years and he would not have earned as much as he did. And the plaintiff has nowhere suggested in his evidence that, after the assault, his employer made complaints of his driving performance, threatened to dismiss him for bad performance or even dismissed him on such ground.

27.  In fact, the plaintiff disclosed in the box he took it upon himself to “resign” from his job as a minibus driver. He claimed in the box that he found such job too tough to cope with. He claimed he could not turn around his neck smoothly nor exerted his hand strongly enough to open or close the door of the bus.

28.  Regarding plaintiff’s alleged neck problem, I do not accept he was injured at his neck in the assault as he claimed. His examination at A&E Department of TKOH on the day of the assault did not suggest any neck injury. To the contrary, the medical records on that day showed the words “no neck pain”[10]. His other medical records before me indicated that his past medical history includes “cervical XR: disc space narrow C4/5, C5/6, C6/7, posterior osteophyte”[11].

29.  Regarding his alleged hand problem, I repeat my assessment of his left thumb and left shoulder pain above. There is no suggestion in plaintiff’s witness statement or at the AOD hearing before me of the plaintiff continuing to suffer any problem with his right upper limb as a result of the assault. And he has never claimed that his left hand is his dominant hand. As such, I see no difficulty for him using his right hand to close or open bus door.

30.  By December 2014 when plaintiff ceased working as a minibus driver, he was close to 64. Contrary to his claim in his witness statement, he was not entirely healthy before the assault. He had a number of pre-existing health problems[12]. The working hours of being a minibus driver on shifts is by no means, one thinks, easy for such an old man like the plaintiff to cope with and it is not surprising that he quitted himself as he did. I find it unlikely that his cessation of work as a minibus drive had anything to do with his injuries sustained in the assault as he claimed.

31.  All in all, I do not find the plaintiff entirely credible or reliable. I am only prepared to accept such of his evidence I set out in the next section below.

32.  For the sake of completeness, I do not accept either plaintiff’s evidence of fearing similar attacks by turning around “daily” to look over his back[13] and of his having insomnia due to bodily pain he suffers[14]. There is no evidence of his having received any treatment for either and there is no medical evidence, expert or otherwise, suggesting any psychiatric or psychological problems being suffered by the plaintiff as a result of the assault.

Findings of facts

33.  On my assessment of the evidence above, my findings of facts are as follow.

34.  The plaintiff was born in Hong Kong in January 1951 and aged 61 on the day of the assault. He received education up to primary 6 level. He was once married but later got divorced. He has 4 adult children but has lost contact with them for over 10 years. He lives alone in a flat in a public housing estate.

35.  On the day of the assault, the plaintiff was employed by one Lee Keung Enterprises Ltd. (the employer) as a minibus driver and the defendant was his colleague. He worked on shift hours. He only began working for the employer in mid-June 2012. His driving licence produced before me[15] has an expiry date of 8 July 2018.

36.  Plaintiff’s daily wages with the employer on the day of the assault was around $300. Save for this job with the employer, he had no other source of income on the day of the assault.

37.  After the assault more particularized in SOC in paragraph 2 above, the plaintiff was sent by ambulance to A&E Department of TKOH for medical treatment. He was registered for consultation at 1536 hours. At 1549 hours, he was seen by one Dr Poon Tak Shun.

38.  On examination by Dr Poon at A&E Department of TKOH, local redness was noted in plaintiff’s head (at a location above left ear). Abrasions wounds were found in his left hand (on all fingers except thumb). A bruise mark was noted in his right hand (near the wrist). Tenderness was noted in his left shoulder. Another abrasion wound was noted in his left leg (at a positon slightly above knee level). A small laceration was found in the lower lip. Upper lip bruising was noted. Left upper canine teeth was loosened. I accept all these injuries were caused by the assault and some of them were recorded by way of photos taken on the same day produced before me[16].

39.  On the same day, computer tomography of plaintiff’s brain showed no signs of intracranial bleeding or skull fracture. X-ray of his left shoulder, hands, and chest showed no sign of fracture.

40.  The provisional diagnosis made at A&E Department of TKOH was “multiple injuries, common assault”, which diagnosis I accept. Wound dressing was performed on, and anti-tetanus toxoid was given to, the plaintiff. He was discharged at 1755 hours on the same day. Sick leave was given to him to 24 July 2012.

41.  On 20 July 2012, the plaintiff was followed up once at A&E Department of TKOH. Sick leave was further given to him from 20 to 29 July 2012. He therefore was granted a total of 19 days of sick leave for the assault.

42.  On 3 August 2012, the plaintiff attended one session of occupational therapy at TKOH. He complained of pain and weakness over his right wrist. He also complained of pain over the dorsum of his right hand first web space. He reported of mild numbness over the right thumb and the finger pad of index finger.

43.  On examination, there was mild swelling over the dorsum of his right hand’s first web space. The active range of motion of his right wrist and fingers was full. No abnormality was defected when comparing to that of his left hand. The power grip of his right and left hand were 15kgf and 23kgf respectively. The lateral pinch grip of his right and left hand were 4kgf and 7kgf respectively.

44.  A soft thumb brace with reinforcer support was prescribed to the plaintiff for his daytime use. Soft brace application and regime were also taught. Precautions in activities in daily living were taught. The plaintiff was advised to avoid strengthening of his right wrist.

45.  The plaintiff thereafter defaulted occupational therapy at TKOH scheduled on 4 September 2012 and no further appointment was arranged.

46.  The plaintiff thereafter did not receive any further treatment from TKOH for his injuries in the assault.

47.  I find that the plaintiff has by today greatly, if not fully, recovered from his injuries in the assault. Today, he at best suffers mild pain at his left thumb and left shoulder, and mild headache, as a result of the assault.

48.  After expiry of his sick leave issued by TKOH, the plaintiff has resumed working for the employer as a minibus driver until early December 2014 and earning as much as was recorded in the employer’s return for remuneration for the years ended 31 March 2013 and 31 March 2014, employee’s income reports of plaintiff issued by the employer, and plaintiff’s bank passbooks found in the assessment bundle[17].

49.  The injuries in the assault has not adversely affected plaintiff’s resumption of working for the employer. He did not suffer any loss of earnings after such resumption.

50.  The plaintiff has suffered from other health problems (unrelated to the assault) which existed before the assault. He has been followed up at ENT Clinic of TKOH and admitted to TKOH for an operation in March 2014.

51.  In about early December 2014 (when plaintiff was about to reach 64 in January 2015), the plaintiff decided to resign himself from working for the employer.

52.  Plaintiff’s cessation of working for the employer had nothing to do with the injuries in the assault.

53.  Since about February 2016 (after plaintiff has reached 65), he started receiving allowance in the monthly sum of $2,000 odd from the government. He in effect retired from working at all as from February 2016.

PSLA

54.  The plaintiff seeks to recover $300,000 for this head of claim in RSOD.

55.  Ms Lo referred me to a total of 11 comparable at paragraphs 11-21 of her opening submissions. I find the following 3 useful in comparing with plaintiff’s circumstances, namely: - (1) Yu Ka Ki v Chan Wing Sum, unreported, DCPI 1819/2010, Master I. Wong, 4 November 2011, $75,000 PSLA award; (2) Mak Hung Yin v Tsang Koon Chung & others, unreported, HCPI 1038/1997, Lugar-Mawson J., 9 August 2000, $90,000 PSLA award; and (3) So Sau Man v Leung Ming Kwong & another, unreported, DCPI 376/2005, H. H. Judge Lok, 18 October 2005, $100,000 PSLA award.

56.  The rest of comparable referred to by Ms Lo are, I think, markedly differently from our case by reason of different nature of accident and/or different injuries sustained by the claimants (many of them suffering psychiatric illness as a result).

57.  Having so compared the above comparable against all the circumstances of the case before me as I find, and considering the effect of inflation over the course of time, I make a PSLA award in sum of $100,000 in favour of the plaintiff.

Loss of earning capacity

58.  A sum of $100,000 is sought for this head in RSOD on the basis that plaintiff’s working efficiency is expected to be diminished due to the injuries he sustained in the assault.

59.  On the basis of my findings at paragraphs 47 to 53 above, I do not think that the plaintiff has made out this claim. I do not find any real risk of the plaintiff losing his job of minibus driver with the employer due to the injuries he sustained in the assault at any time before December 2014 when he decided upon himself to quit the same. In my view, he has not suffered any handicap in the labour market as alleged.

60.  I decline to make any award here.

Special damages

Medical expenses

61.  The plaintiff in his witness statement and in the box only referred to treatments received at TKOH for the injuries in the assault but gave no details of their expenses. Neither was any receipt of the same produced before me in the assessment bundle. Doing the best I can on the limited evidence given by the plaintiff, I award a sum of $200 by way of medical expenses.

Travel expenses

62.  Again, the plaintiff has not in his witness statement or in the box given evidence of such expenses or their details. Having received treatments at TKOH as he did, the plaintiff must, I think, have incurred some travel expenses. I am prepared to make a nominal award of $100 in his favour.

Tonic food etc.

63.  No evidence of consumption of any tonic food was given by the plaintiff in the box or in his witness statement. This head simply fails for want of evidence.

Summary

64.  The total amount of damages I award in plaintiff’s favour therefore comes up to $100,300 i.e. $100,000 + $200 + $100.

Disposition

65.  Accordingly, I enter judgment against the defendant in the sum of $100,300.

Interest

66.  I further award interest in plaintiff’s favour on PSLA award of $100,000 at 2% p.a. from 21 November 2014 to the date hereof and on special damages totaling $300 at 4% p.a. from 11 July 2012 to the date hereof.

Costs

67.  Costs usually follow the event. I make an order nisi that the costs of the assessment of damages, including this hearing before me on 26 March 2018, be paid by the defendant to the plaintiff, to be taxed if not agreed, and that plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations. Such order shall become absolute if none applies within 14 days from the date hereof to vary it.