TONG LIN KEUNG v. WONG CHI LEUNG

H.C.P.I. NO.789 OF 1996

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 789 OF 1996

_________________

____________________________

______________________________________________

DISCISION ON ASSESSMENT OF DAMAGES

______________________________________________

Background

1. This action arose out of injuries sustained by the Plaintiff as a result of assault by the Defendant. The assault took place on 20th September 1993 at about 11:35 a.m. At the material time, the Plaintiff was working as a driver of a goods vehicle for a company named Fairlandtoy International. The Defendant was the manager of the company. The Plaintiff drove his vehicle to San Ma Tau Street near Kowloon City Pier. He called the company to get someone to unload the goods from the vehicle. The Defendant came and told him to go up to the office. He refused to do so because he could not find a parking space to park his vehicle. The Defendant accused the Plaintiff of not obeying his order. They had an argument and the Defendant punched the Plaintiff's head and face with fists and kicked his groin and buttock. The defendant also pushed him to the wall, kicked his hip and the lower part of his body including his sexual organ. The Plaintiff had sustained injuries and was sent to the Queen Elizabeth Hospital (QEH) for treatment. On the same day, he was dismissed by the company.

2. The Plaintiff commenced these proceedings on 12th July 1996. The Defendant had filed his defence. In the Defence, the Defendant admitted that he was convicted of the offence of common assault at the San Po Kong Magistracy on 23rd February 1994. The Defence denied that the Plaintiff had suffered any injuries and he denied the damages as claimed by the Plaintiff. The Plaintiff applied for summary judgment. On 29th June 1998, summary judgment was entered by the Master against the Defendant. In the judgment, it is adjudged that the Defendant should pay the Plaintiff damages and interest thereon to be assessed and costs to be taxed.

3. At the hearing, the defendant was absent. Having been satisfied that the notice of hearing had been duly served on the Defendant, I proceeded to assess the damages in the Defendant's absence.

The Plaintiff's Injuries

4. The Plaintiff was admitted in QEH where he was hospitalized for one night for observation. There is a medical report from Doctor Lam Chiu Wing of QEH. According to Doctor Lam's report, the Defendant complained pain over occiput, upper lip, genitalia and over his left hip. He was discharged after having been treated with Panadol and analgesic balm. He had received treatment at the Neurosurgery of QEH Specialist Clinic from time to time for the head injury until 28 March 1994. Thereafter, he consulted private doctor to treat his headache. He was given sick leave from 20th September 1993 to 18th October 1993. Other sick leave are on 22nd November 1993 and from 3rd January 1994 to 9th May 1994.

5. There are altogether 5 medical reports concerning the Plaintiff's injuries. Apart from Doctor Lam' report above, Doctor Brian Choa has written 2 reports, one dated 10th October 1994 and the other dated 16th April 1996. In his first report, Dr. Choa had the following findings:

* Right side of the neck tender

* Unsteady on heel and toe walking

* Subjectively giddy when standing with eyes closed

* First degree nystagmus on looking to the left

* Disturbance in the balance system and

* Root and cord compression at the C6 level.

6. His diagnosis of the Plaintiff was that the soft tissues such as the ligaments bore the brunt of the injury, analogous to a whiplash injury causing persistent neck pain. The altered reflexes might be due to a minor degree of pre-existing cervical spondylosis aggravated by this injury. He assessed a permanent impairment to the Defendant of 5%, and a permanent loss of earning capacity of 10%.

7. In his second report, Dr. Choa found that the Defendant had tennis elbow, which was unrelated to his original injury. His neck movements are full and pain free but he has considerable tenderness over the right greater occipital nerve. The head discomfort was caused by the whiplash type injury he sustained in the fight of September 1993. There was a post-concussional syndrome with some memory and mood change. He maintained his assessment of the Defendant's permanent impairment and permanent loss of earning capacity in his first report.

8. In his report, Dr. Herman Tang was of the opinion that the hearing mechanism of the Defendant's ears suffered no injury from his assault. The balancing mechanism in conjunction with his brain sustained a post-concussional syndrome. He was likely to have mild unsteadiness on vigorous head movement for the rest of his life.

9. In the report, Dr. Paul Cheung found that the Defendant's eyes were normal. The Defendant was not suffering from any permanent disability of his visual system as a result of the injury he sustained on 20th September 1993.

10. At the hearing the Defendant was still complaining that he had headache from time to time and that his eyesight was deteriorating and that he was easily irritated. According to the medical reports, his eyes function was deteriorating because of his age, not because of the injury.

Pain Suffering and Loss of Amenities (PSLA)

11. Counsel acting for the Plaintiff, Mr. Edward Chow submitted that the Plaintiff's injuries should be classified as at the lower end of serious injury laid down in Lee Ting-lam v. Leung Kam-ming, an infant by his next friend Leung Shu-wing [1980] HKLR 657. He also referred me to Chan Tak Chi v Wong Siu Tao [1998] 4 HKC 16. He submitted that the award should be HK$240,000.00.

12. In this case, the major injuries suffered by the Plaintiff are the neck injury causing the disturbance of his balancing system and the head injury with concussional syndrome resulting in memories and mood change. The medical evidence does not show that he is suffering from injury which mars his general activities and enjoyment of life. I do not accept that his injuries have come anywhere close to the "serious injury" category in Lee Ting Lam's case. The Plaintiff's injuries do not come close to those in Chan Tak Chi's case. From the medical evidence, I find that the Plaintiff's injuries are less serious than those in another case of Jack Jervis Clode v Kane Douuglas Terras HCIP No.991 of 1998. In that case, the victim was assaulted with a beer glass. There were 2 lacerations to the left side of the victim's forehead. One of the lacerations cut across the victim's left eyebrow. The lacerations were deep and required suturing of 9 stitches. He was kept in the hospital overnight. The victim bore permanent and unsightly scars on his forehead. The court accepted that he was embarrassed socially by the scars, which was also detrimental to his practicing the service industry. The PLSA awarded by the Master was $140,000. In this case the Plaintiff's injuries were even less serious than those suffered by the victim in that case.

13. In my view, having regard to the medical treatment to the Plaintiff, the sick leaves given to the Plaintiff and that he may have persistent head discomfort as a result of the injury to his occiput and his neck, the appropriate award for PSLA is $90,000.

Pre-trial Loss of Earning

14. The Plaintiff was born on 11th September 1954 and was 39 at the time of the incident. Before the incident, he was employed by Fairlandtoy as a truck driver shuffling between Hong Kong and the mainland, earning an average of $13,000 per month, which consists of basic monthly wage of $8,000, double pay $8,000 and trip allowance, the first 8 trips being $500 each and the subsequent trips at $400 each. He had on average 12 trips for a month. After the incident, he was dismissed by Fairlandtoy and he had taken 2 months for rest. During the period from September after the incident and December 1993, he could not drive because whenever there was a bump on the road, he would feel headache and had to take "Panadol". He also had vision blurring at night. He therefore worked as a casual garbage disposal worker on a daily pay of $350 for about 10 days between November and December. As a result, he had learned $3,500 during these 2 months. The Plaintiff's pre-trial loss is therefore the monthly wage of $13,000 for 3 months and 10 days (from 20.9.93 to 31.12.93) less $3,500; i.e. $13,000x 3 1/3 - 3,500=$40,833 (round-up figure)

Loss of Future Earning and Loss of Earning Capacity

15. The Plaintiff is claiming a global sum of $80,000 under these 2 heads. Between January 1994 and 26 June 1995, the Plaintiff worked with Industrial Waste Disposal Limited as a driver and a garbage disposal worker, earning about a monthly wage of $15,000, which include the basic wage and overtime allowance. On 26 June 1995, he was dismissed and immediately, he found another job as a truck driver transporting stones between constructive sites for an average monthly wage of $12,000. He quitted the job in March 1996. In May 1996, he worked for a Mr. Mao Fai as a construction truck driver in transporting stones between Hong Kong and the mainland earning on average of $12,000 per month. He worked there until 14 April 1997 when Mr. Mao had failed to pay him one month wages.

16. On 15 May 1997, he wanted to earn more money. He carried on his own business of driving truck for transporting stone between Hong Kong and the mainland. He was a contractor at that time. Business was not good and he had sustained a loss. From December 1997 until the date of the hearing, he was employed by Hong Kong Stone and Transportation Company as a truck driver in transporting stones between Hong Kong and the mainland on a monthly basic wage of $8,500 and $200 allowance for any trip over three trips.

17. It is obvious that after about three and a half months' rest the Plaintiff was not only able to work the same trade, he was able to work more onerous job, earning more money than his job before the incident. He had stayed in this job for more than one and a half year. He has been carrying on with truck driving between constructive sites or Hong Kong and the mainland. The Plaintiff admitted in answering my question at the hearing that the reason for the decrease of his monthly income was because of the employment market, which was badly affected by the financial turmoil, not because of his injury. For this reason, I do not think that the Plaintiff suffers any loss of future income as caused by his injuries.

18. As for the loss of earning capacity, the Plaintiff complained that he is still suffering chronic headache from time to time. He has to stop his vehicle for a short time whenever there is a headache. He has also developed bad mood as a result of the cervical injury and the occiputal concussion. In his job for Mr. Mao in 1997, he had had an argument with Mr. Mao who had slapped his face too in Shenchen. In Dr. Brian Choa's report dated 16 April 1996, the doctor was of the view that the disturbance to the brain substance caused some memory and mood change and the Plaintiff's irritability might also be aggravated by his frustration with his chronic discomforts and his difficulty in holding down a well paid job. In his opinion, Dr. Choa assessed the Plaintiff to suffer 5% impairment to his person and permanent loss of earning capacity for about 10%.

19. An award for loss of earning capacity (or for "handicap in the labour market" as it is sometimes called) is to compensate him "if he ever lost his current employment he would have difficulty obtaining employment at all or he would only be able to obtain less well-paid employment. 'Employer must consider their own interests, and, as the time comes when anyone has to be stood off, as the expression is, quite obviously they do not stand off the man who is most capable of doing the work - they naturally stand off the man least capable and the man who has been incapacitated to a certain extent.' Somervell L.J. dealt with this topic in much the same language in Deakin v. Sankey [1951] C.A.21..." Kemp & Kemp. See the judgment of Master A. Chung in Siu Wai Man Ada v Lee Chi Chong and Chan Ping Fai in H.C.P.I. No.174 of 1994 at page 13. I am of the view that the injuries impair the Plaintiff's ability of getting a similar well-paid job if he ever lost his job. The Plaintiff is now 45 years old. His working life will be 20 years as he said that he would retire at 65. Having considered Siu Wai Man Ada's case , I award to the Plaintiff a sum of $25,000.

Special Damages

20. The Plaintiff claims special damages for the following items:

(1)

Out-patient treatment charge:

	$33 x 4	$132
	$36 x 2	$72	$204

(2)	Travelling expenses to attend out-patient by taxi	$600
(3)	Tonic food & herbal medicine	$1,000
	TOTAL	$1,807

21. The out-patient treatment charges are evidenced by receipts (see page 024 of the Bundle). I am of the view that it is reasonable to allow the Plaintiff to take a taxi for the transport. There are altogether 6 visits of return journeys. I consider $600 is reasonable. As to the tonic food and herbal medicine, I am referred to the case of Yu Ki v Chin Kit-lam and Another [1981] HKLR 419, in which Roberts, C.J. said in his judgment:

"I regard it as reasonable for any person of Chinese race to decide at any stage that Chinese herbal medicine or the attentions of a bone-setter are likely to be beneficial, whether or not he has previously sought conventional medicine and treatment, or is still receiving it. If he does so, he should be entitled to the reimbursement of reasonable fees for the Chinese treatment as well as for the conventional treatment."

22. Although the Plaintiff has not produced the receipt for the tonic food or the herbal medicine, I accept the oral evidence of the Plaintiff that the tonic food and the herbal medicine were given to him by his mother-in-law in China. I award to the Plaintiff the amount as claimed.

Conclusions

23. The amount of damages that the Plaintiff is entitled to recover from the Defendant is made up as follows:

(A)	General Damages

	(1) PSLA			$90,000
	(2) Post-trial loss of earnings			$25,000
				$115,000

(B)	Special Damages

	(1) Pre-trial loss of earnings		$40,833
	(2) Out-patient treatment charge		$204
	(3) Travelling expense		$600
	(4) Tonic food and herbal medicine		$1,000	$42,637
	Total Award			$157,637

24. I enter judgment for the Plaintiff's loss and damages in the amount of $157,637. The amount of general damages will carry interest at the rate of 2% p.a. from the date of the service of the Writ, i.e. 17th July 1996 until the date of this judgment. The amount of special damages will carry interest at 5% p.a. from the date of the incident until the date of this judgment. Thereafter, both awards will carry interest at judgment rate until full payment.

25. I also make an order nisi that the Plaintiff shall have the costs of the assessment of damages, to be taxed if not agreed. The Plaintiff's costs is to be taxed in accordance with the Legal Aid Regulations. This costs order nisi is to be made absolute upon the expiration of 14 days from the handing down of this judgment.