LAW KWAI YEE v. LAW MOON KWONG

DCPI 3261/2022

[2025] HKDC 1137

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3261 OF 2022

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J U D G M E N T

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1.  This is an assessment of the Plaintiff’s damages in a personal injury case.

2.  On 26 September 2022, the Plaintiff commenced the present proceedings against the Defendant for damages and loss sustained by her as a result of an assault and battery incident inflicted and committed by the Defendant on 10 January 2021 at the family home. 

3.  The Defendant did not attend any previous hearings and the assessment hearing on 27 March 2025. 

4.  No defence was filed by the Defendant.  By an Order dated 23 November 2022, interlocutory judgment on liability was entered against the Defendant leaving damages to be assessed. 

5.  The Notice of Appointment of Assessment of Damages (“AOD”)  was filed on 24 September 2024.  Affirmation of service have been filed by the Plaintiff.  The court is satisfied that due service of notice of hearing and relevant documents was effected and the Defendant was duly informed of and was aware of the proceedings against him.

6.  At the assessment hearing, the Plaintiff was represented by her solicitor Mr Wong.  The Plaintiff was the only witness who testified at the assessment hearing.  She adopted as evidence-in-chief of her witness statement[1] filed on 13 April 2023.  

7.  Damages are claimed under the following heads and no answer was filed by the Defendant[2]:

(a)  Pain, suffering and loss of amenities (“PSLA”)	$350,000.00
(b)  Pre-trial loss of earnings and MPF	$108,503.40
(c)  Loss of earning capacity	$80,000.00
(d)  Aggravated damages	$50,000.00
(e)  Exemplary damages	$50,000.00
(f)  Special damages	$12,000.00
(g)  Interest	(to be assessed)

8.  At the AOD, Mr Wong informed the court that the Plaintiff would not pursue (d)  and (e).  And for (a), the Plaintiff confirmed she is to claim $300,000 for PSLA. 

BACKGROUND

9.  The Plaintiff was aged 24 at the time of the assault.  She is now 28 years old.  She is the daughter of the Defendant.  

10.  At the material time, the Plaintiff was living with the Defendant, her mother, her younger sister and younger brother at the family home in Tuen Mun, where the assault took place. 

The incident

11.  In the afternoon at around 1315 on 10 January 2021, the Plaintiff was playing and feeding her two dogs in the living room.  At the time, the Defendant was having lunch and was disturbed by the dogs.  He lost his temper and began to scold at the Plaintiff with abusive words.  The Defendant demanded the Plaintiff to cage her dogs.  After the dogs being caged, the Defendant acted violently by kicking the cage and throwing the Plaintiff’s belongings which were placed on top of the cage onto the floor. The violent act escalated with the Defendant throwing a pet trolley towards the Plaintiff.  The Defendant then slapped the Plaintiff’s left face.  When the Plaintiff was attempting to make phone call to the Hong Kong Police, the Defendant interrupted and pushed the Plaintiff against the sofa and punched her face for several times.  The Plaintiff then escaped and locked herself in the room while waiting for the police and ambulance.

12.  The Plaintiff managed to capture a brief recording of the above incident.  The video clip had been adduced under the Plaintiff’s list of documents[3] and was played during the assessment hearing. 

Injuries and treatments

13.  The Plaintiff was being sent to the Accident & Emergency Department of Tuen Mun Hospital (“A&E TMH”). As a result of the assault, the Plaintiff sustained multiple injuries to her nose bone, face, left eye and mental illness. 

14.  According to the A&E Initial Findings by the attending doctor dated 10 January 2021[4], injuries include tenderness, redness, bruising, swelling on the Plaintiff’s left face and abrasion on her left forearm.  The same findings are evidenced in the medical report of Dr Sun Kwok Fung of A&E TMH dated 16 June 2021[5]. Physical examination revealed that the Plaintiff was:

•  Conscious;

•  CT brain and orbit scan showed no fracture or internal bleeding;

•  Pain and bruising on left face and periorbital region;

•  Left eye showed bleeding in the conjunctiva;

•  Visual acuity was reduced;

Mode of injury was assessed as compatible to blunt trauma of left face.  The plaintiff was treated and was referred to the Ophthalmology Department for follow up and to the Harmony House for domestic violence support. 

15.  Referring to the medical report of Dr Poon Ka Kin of TMH dated 26 July 2021[6], the Plaintiff attended the Ophthalmology Department on the day after the assault.  Examination revealed that there was periorbital bruises.  No permanent disability was found.  No sick leave was given for the eye condition and no continue attention was required.  

16.  Due to persistent nasal discomfort, the Plaintiff was referred to and attended the Ear, Nose and Throat Department (“ENT”)  of TMH.  According to the medical report of Dr Vincent Leung of ENT TMH dated 8 June 2021[7], the Plaintiff’s consultation on 3 February 2021 indicated that she experienced persistent nasal obstruction post-injury.  Rhinitis symptoms, including sneezing, runny nose, and nasal congestion present.  Physical examination revealed depression over the left nasal bone with tenderness.  She had undergone nasal endoscopic examination which showed her nasal septum (namely, the cartilage and bone dividing the two nostrils)  are out of alignment.  She was prescribed of nasal spray to sooth the symptoms and was scheduled for follow-ups.

17.  It is further stated in the medical report of Dr Vernon Lam of ENT TMH dated 9 June 2022[8] that surgical treatment for the complained nasal obstruction was offered to and accepted by the Plaintiff.  Operation was performed for septoplasty and inferior turbinate reduction on 2 September 2021.  The operation was to address nasal obstruction to enhance airflow.  A small adhesion in her right nasal cavity was developed post-operation and adhesiolysis was performed on 19 October 2021 to remove the scar tissue under local anaesthesia. It was found that the Plaintiff’s nasal obstruction had improved and latest endoscopy showed no adhesion. 

18.  The Plaintiff had attended consultations with clinical psychologist at Pok Oi Hospital (“POH”)  since 2021.  Findings can be seen in the clinical psychology progress notes of Dr Lam Wing Wah[9] of POH, which were consistent with the clinical psychological reports of POH dated 20 June 2022 and 30 June 2023[10] which state the Plaintiff suffers from adjustment disorder and trauma reactions triggered by the assault and stress from surgery for the injury and the unemployment.  

19.  The Plaintiff was referred for psychiatric assessment and treatment at the Castle Peak Hospital (“CPH”). Referring to the medical report dated 25 May 2023 of Dr Liu Yan Yin[11] and the related consultation notes[12], the Plaintiff first attended the CPH mental health service on 23 February 2023.  She had no psychiatric admission history.  The report revealed the Plaintiff’s family and childhood background.  In gist, she recalled the whole family had been physically abused by the father since her early childhood.  She once suffered her father’s violent attack when she was in secondary school F2, which resulted in rupture of her right ear drum and mild hearing loss.  The assault on 10 January 2021 resulted not only physical injuries, but she also suffers from:

•  Repeated nightmares of being assaulted and intimidated by the father;

•  Poor sleep & wake up with fear at night;

•  Anxious and irritable with cues reminding her of the father;

•  Hypervigilant and easily startled by noise;

•  Poor concentration and loss of appetite.

20.  Diagnosis was post-traumatic stress disorder (“PTSD”).  Dr Liu opined the PTSD symptoms were the result of her adverse upbringing as a victim of domestic violence, which were triggered by the assault on 10 January 2021.  

21.  The PTSD symptoms had improved in October 2022.  No medication was required.  Prognosis was assessed as optimistic.  Dr Liu also opined the Plaintiff as suitable for assessment of loss of earning capacity as a result of her mental condition. 

22.  According to the evidence of the Plaintiff, she was prescribed with melatonin supplement to regulate her sleep and sleeping pill was prescribed merely to prepare herself for the assessment hearing.  

Sick leave

23.  As a result of the accident, the Plaintiff was granted sick leave for 45 days[13].

Complaints of the Plaintiff

24.  Due to the injury, the Plaintiff claims to have developed rhinitis.  In the Plaintiff’s Chinese witness statement dated 12 April 2023, it is said that after the assault, she always suffers from persistent symptoms of allergic nature, including nasal congestion, sneezing, runny nose with discharge and fullness around her eyes.  She would also suffer from difficult breathing through her nose and shortness of breath easily when walking fast.  Level of concentration at work has been reduced.  

EXPERT EVIDENCE

25.  By an order dated 3 March 2023, direction was given to the Plaintiff and Defendant to jointly report to the court of the parties’ stance to adduce expert medical evidence.  The Plaintiff reported to the court on 27 April 2023 of her election not to adduce expert medical evidence as to quantum, whilst the Defendant was deemed to have elected not to adduce any expert medical evidence at the AOD in this action.  The present case accordingly has no expert evidence for the parties. 

THE PLAINTIFF’S CREDIBILITY

26.  I have considered the general principles set out in the often cited passage for assessing the credibility of a witness in Hui Cheung Fai and Anor v Daiwa Development Limited & Others (2014), unreported, HCA 1734/2009 (DHCJ Eugene Fung, SC; 8 April 2014)  at:

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)  …

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011)  §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002)  5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics)  Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.  It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud)  have been made by the Son against the defendants.

83.  In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563 at 586D-587F (Lord Nicholls)  and ADS v Brothers (2000)  3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

PLAINTIFF’S EVIDENCE

27.  The Plaintiff testified in a straightforward manner and her testimony was not subject to any challenge as the Defendant was absent at the assessment hearing.

28.  In relation to the Plaintiff’s conditions from the time of her witness statement till the present, it is her evidence in court that her nasal condition has improved.  Despite the aforesaid improvement, it is testified by her that she still suffers from long term nasal complications.  The nasal reaction would get worse when there is a change of humidity and temperature; transition between indoor and outdoor; and when being exposed to irritants.  Despite such symptoms were controlled by the use of a nasal spray, she would still have to go through the painful process of unclogging and cleaning her nostrils for relief.  Such would further trigger mucus with bloody discharge and nasal discomfort when being irritated by the cotton swabs.

29.  During her testimony, her emotions were triggered and became teary during the playing of the video clip which captured partially the unpleasant scene of the assault and when she testified about the two nasal surgeries.  Overall, I find the Plaintiff’s evidence credible. 

QUANTUM

PSLA

30.  Mr Wong submits in his written and oral submissions that the award should be $300,000.  Mr Wong referred in his written submissions the follow cases:

(1)  Yeung Shan Yee Sandy v Singway (BVI)  Co Ltd and another DCPI 1030/2005, 24 June 2006: PSLA awarded at $200,000;

(2)  Lee Chi Ho v Lai Ying Tung Michael, DCPI 528/2022, 15 November 2024: PSLA awarded at $250,000;

(3)  Fu Hoi Lin v Tsoi Kam Ching, DCPI 2505/2016, 12 April 2019: PSLA awarded at $150,000;

(4)  Wong Ka Wai Johnny v Lee Man Wai, DCPI 145/2010, 16 January 2012: PSLA awarded at $100,000.

31.  I have considered the above authorities cited by Mr Wong in his opening and closing written submissions.  I opine the cases of Yeung Shan Yee Sandy and Lee Chi Ho are more in line for comparisons with the present case.

32.  In Yeung Shan Yee Sandy, the plaintiff was a 44 years old female at the time of accident and sustained a slip and fell accident at the marble steps at the entrance of Hopewell Centre. Injuries included lacerations over her forehead and nasal area.  Bruises and fracture were found over the nasal bridge.  X-ray revealed depressed nasal bone fracture and closed reduction was performed under local anesthesia.  The plaintiff complained of nasal obstruction and clear rhinorhoea, nasal bridge slightly depressed on the left side, deviated nasal septum, hypertrophic and enlarged inferior nasal turbinates; and a 5 cm scar over her forehead. Otorhinolaryngology expert opined the accident caused deviated nasal septum. Allergic rhinitis leads to hypertrophic and enlarged nasal turbinates causing nasal obstruction; which precipitated the onset of symptoms of nasal obstruction and rhinorhoea.  The symptoms could be controlled by medications and significantly improved by septoplasty and nasal turbinectomy surgery. Expert assessed the nasal obstruction and rhinorhoea caused 1% permanent disability or loss of earning capacity to the body as a whole.  Upon consideration of the expert opinion and relevant case authorities, the court assessed an award of $200,000 would be reasonable if liability could be established.  

33.  In Lee Chi Ho, the plaintiff was a 44 years old male at the time of the assault at the workplace by the defendant.  The plaintiff sustained injuries when the defendant threw a bag at him.  Upon admission to A&E, medical examination revealed blood stain over his left nostril and a 5 cm abrasion over his right nasal bone with mild tenderness.  X-ray revealed non-displaced nasal bone fracture.  There was a 7 cm laceration wound from his right cheek to nasal bridge.  The plaintiff was referred to the ENT Department.  The plaintiff complained of bilateral nasal obstruction after the injury, dull pain and increased hump over the nasal dorsum.  Endoscope revealed that bilateral inferior turbinates were congested, the nasal septum was deviated to the left and bulging inferior maxillary crest.  The plaintiff was prescribed with steroid nasal spray.  His main complaint was persistent left nasal obstruction.  Surgery for septoplasty, rhinoplasty and turbinate reduction was subsequently performed.  For this case, there was no expert medical report to assist the court.  The court awarded PSLA at $250,000.

34.  It is worth to note that in Lee Chi Ho, in the assessment of quantum, a recent case authority Naseem-Abbas and Anor v Rising Aerial Platform Company Ltd and Ors [2024] HKCFI 918 was cited and considered by the court.  In Naseem, the 1^st plaintiff (“P1”)  was a 41 years old male scaffolder and sustained work injuries when he fell from a height of approximately 16 feet onto the ground.  In relation to the injuries, other than lacerations and orthopaedic injuries on his body, P1 also suffered fracture nasal bone and septum.  Anterior rhinoscopy was performed and revealed deviated nasal septum to the right, congested inferior turbinate and the right inferior turbinate was touching the septum.  Clear nasal discharge was also noted upon ENT examination.  Septoplasty with submucous resection of septum and bilaterial turbinate reduction was performed for the improvement of nasal obstruction.  PSLA was awarded at $275,000.

35.  I agree with Mr Wong that the nose injuries suffered by the Plaintiff in the present case are similar to Yeung Shan Yee Sandy and Lee Chi Ho.  However, I opine the overall injuries are less serious than Naseem.  Mr Wong confirmed in its opening submissions and at the assessment hearing that the Plaintiff is to claim PSLA at $300,000. 

36.  In the present case, the Plaintiff did not plead PTSD in the Statement of Damages (“SOD”)  nor Revised Statement of Damages (“RSOD”).  It is trite that the SOD takes on the character of a pleading, purpose of which is to ensure that the issues between the parties can be defined in advance of trial.  Be that as it may, I have considered the SOD and RSOD, under which the Plaintiff has pleaded ‘adjustment problem’.

37.  In assessing damages for PSLA, I have considered the way the assault occurred.  From the video clip, the Defendant’s behaviour in my view was outrageous.  He physically attacked the Plaintiff at the family home by smacking / punching / slapping the Plaintiff’s face.  The Plaintiff in the present case has fortunately suffered no facial deformity and scar, yet she had undergone two nasal surgeries.  I accept that the assault experience and the Plaintiff’s post- assault lingering conditions should not be confined to the physical aspect, but the mental aspect.  I agree the Plaintiff’s stress level in the past and in the future would be complicated by the factor that the Defendant is her father.  Despite she moved out from the family home to avoid further conflicts and attempted to maintain distance from the Defendant, the Plaintiff is continuously anxious that she would be located by the Defendant and subject to further attack.  The same has been relayed to the therapists at the different psychological and psychiatric sessions.  I consider the PSLA amount $285,000, from the physical and mental perspective, is a reasonable sum. 

Pre-trial Loss of Earnings

38.  At the time of the incident, the Plaintiff worked as a sales consultant at a fitness centre.  Her monthly earnings were supported by documentary evidence including the full set of payroll records, bank statements and relevant Inland Revenue Department documents.  She earned an average monthly income of $11,372.75 in the 12 months prior to the incident. 

39.  It is worth to note that her income at a point of time post-injury had increased as the pandemic issue came into control.  Her average monthly income upwardly adjusted to $23,352 until she resigned from the employment on 19 October 2021. 

40.  Upon her resignation, the Plaintiff remained unemployed until 10 February 2022.  The Plaintiff has returned to employment from February 2022.  She had worked for different types of employment including but not limited to receptionist at a piano shop, assistant supervisor and staff at different Covid testing centres.  It is contended by the Plaintiff that at the material time, she was suffering from persistent nasal problems, trauma reactions and adjustment problems.  The Plaintiff claims a full loss of income during the unemployment period of around 110 days.

41.  I have considered the limited medical reports for this case as well as the evidence given by the Plaintiff at the assessment hearing.  On the balance of probabilities, the Plaintiff fails to satisfy the burden of proof that the ‘unemployment / recovery period’ was reasonable and a direct result of the residual symptoms from the injury.  The court opines a 12 weeks period is appropriate and generous enough for the Plaintiff to seek alternative employment.  The award sum would include the salary deduction of $6,533 as evidenced in the payroll record plus $68,654.88[14], totalling $75,187.88.

Loss of earning capacity

42.  From mid-August 2024, she commenced her present employment as an accounting clerk at a well-known real estate company.  Her existing work duty includes data entry, verification of sales documents and sales figures which would require a high level of concentration. 

43.  It is the Plaintiff’s evidence at the assessment hearing that she had encountered difficulty at work not only in relation to her nasal problems, but also mental issues.  She claims to have suffered sweatiness in palms and refusal to talk, especially when she visualised or heard noises of her former male supervisor who resembled her father’s attitude. 

44.  Despite there is no expert medical evidence to suggest that the Plaintiff is neither physically nor mentally fit to return to any occupation, I accept that the long term residual symptoms of nasal blockage and discharge, coupled with the mental condition might in certain way impair her working ability when comparing to a perfectly healthy same age adult and accordingly being placed in minimal disadvantage in the labour market.  I am satisfied that the risk of her losing even her current employment in the days to come is not a farfetched one.  The Plaintiff is claiming loss of earning capacity at $50,000 which I agree with Mr Wong that it is a modest sum and would allow the sum in full.  

Aggravated Damages & Exemplary Damages

45.  Whilst these two heads are pleaded in the RSOD, the Plaintiff confirmed in its opening submissions not to proceed with the two heads of claim.  Award: Nil.

Special damages

46.  In the closing submissions, the Plaintiff claims for:

(i)  Medical expenses	$5,125 + $650
(ii)  travelling expenses	$2,500
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TOTAL:	$8,275

47.  The Plaintiff maintained a record of the relevant medical expenses as at 6 April 2023.  Despite there was insufficient record to support the subsequent medical expenses, I have considered the evidence of the Plaintiff at the assessment hearing that most follow-up consultations were electronically booked and paid via the platform on the Hospital Authority App.  At the assessment hearing, the Plaintiff was able to particularise the different follow-ups being arranged at POH and CPH.  Having considered the nature of the incident as evidenced in the video clip and the impact to the Plaintiff’s physical and mental condition, I accept her claim amount as reasonable and allow in full for the above.

CONCLUSION

48.  The amount of damages to be awarded to the Plaintiff is as follows:

(a)  Pain, suffering and loss of amenities (“PSLA”)	$285,000.00
(b)  Pre-trial loss of earnings	$75,187.88
(c)  Loss of earning capacity	$50,000.00
(d)  Aggravated & Exemplary damages	Nil
(e)  Special damages	$8,275.00
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TOTAL:	$418,462.88 ======== plus interest

Interest & Costs

49.  The usual interest will be awarded at 2% per annum for general damages from the date of writ to the date of judgment and thereafter at judgment rate until payment in full; for special damages at half judgement rate from date of the accident to the date of judgment and thereafter at judgment rate until payment in full.

50.  I also make an order nisi for costs that the Defendant shall pay the Plaintiff’s costs of the AOD, including all costs previously reserved (if any), such costs to be taxed if not agreed. Plaintiff is legally aided, the Plaintiff’s own costs is to be taxed in accordance with the Legal Aid Regulations.  Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an absolute order.

51.  I thank Mr Wong for his assistance at the AOD.