LEE CHI HO v. LAI YING TUNG MICHAEL

DCPI528/2022

[2024] HKDC 1912

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 528 OF 2022

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of damages in a personal injury case in which the plaintiff, a security guard, sustained injury whilst at work when the defendant threw his bag at the plaintiff.

Procedural history

2.  Interlocutory judgment on liability was entered against the defendant on 1 June 2022 leaving damages to be assessed.

3.  The Notice of Appointment for Assessment of Damages was served by post on the defendant at his usual or last known address on 15 March 2024.Affirmation of service regarding the Assessment of Damages hearing was filed on 12 September 2024 and Ms Sun Yee Man (“Ms Sun”), solicitor for the plaintiff, confirmed there was no returned mail as at the date of the assessment hearing.

4.  The defendant did not attend the assessment hearing. I was satisfied that notice of the assessment hearing had been duly given to the defendant. It was the defendant’s choice not to attend the assessment hearing. I proceeded with the assessment of damages in this case in the absence of the defendant.

The plaintiff’s case

5.  The plaintiff was the only person who testified at the assessment of damages. He adopted his witness statement filed herein as part of his evidence in chief.

6.  The plaintiff was born in 1976. At the time of the accident on 15 March 2020 where he sustained personal injuries (“the Accident”), he was almost 44 years old. He worked as a security guard. He is single and lives with his family. He enjoyed good health before the Accident.

7.  On 15 March 2020 at about 2:15 a.m., whilst the plaintiff was on duty at work at a residential building in Tseung Kwan O (“the Building”), the defendant insulted the plaintiff for failing to open the door of the Building for him and all of a sudden, threw his bag at the plaintiff. As a result, the plaintiff sustained personal injuries.

8.  On 22 October 2020, the defendant was charged with and convicted of the offence of inflicting grievous bodily harm contrary to section 19 of the Offences Against the Person Ordinance (Cap 212) upon his own guilty plea and was sentenced to 240 hours of community service.

Injuries and treatment

9.  Immediately after the Accident, the plaintiff attended the Accident & Emergency Department of Tseung Kwan O Hospital (“TKOH”) for treatment. Medical examination revealed blood stain over left nostril and a 5 cm abrasion over right side of nasal bone with mild tenderness. X-ray of nasal bone showed non displaced nasal bone fracture. The provisional diagnosis was nasal bone fracture. The plaintiff was referred to Ear, Nose and Throat Department (“ENTD”). 

10.  On 17 March 2020, the plaintiff attended Human Health for medical consultation/ treatment. Physical examination revealed a 7 cm laceration wound on his right face from cheek to nasal bridge. He also complained of pain on eye movement. Other parts of cranial nerve and visual acuity were normal. He was given painkillers, anti-inflammatory drugs and eyedrops for symptomatic treatment. He was subsequently referred to eye specialist for eye pain and unable to read small prints clearly.

11.  From 20 March 2020 to 21 March 2022, the plaintiff regularly attended Human Health for nasal treatment and medication.

12.  On 28 March 2020, the plaintiff was treated by a specialist in Ophthalmology in Polyhealth Specialists for dry eyes.

13.  On 28 May 2020, the plaintiff was assessed by the outpatient clinic of the ENTD of TKOH. He complained of bilateral nasal obstruction after the injury, dull pain over the nasal dorsum and increased hump over the nasal dorsum. Clinical examination showed a small callous and mild tenderness over the upper nasal dorsum. Examination with a nasoendoscope showed that bilateral inferior turbinates were congested and touching the nasal septum. The nasal septum was deviated to the left and the right inferior maxillary crest was bulging, and there was mucus in the posterior nasal space. The plaintiff was prescribed intranasal steroid spray for his nasal symptoms.

14.  On 22 September 2020 and 3 November 2020, the plaintiff was reviewed at the outpatient clinic of ENTD of TKOH. The main complaint of left nasal obstruction persisted. He was offered functional septorhinoplasty for functional and aesthetic improvement, to correct the nasal obstruction caused by the deviated septum and to correct the dorsal hump. He was placed on the waitlist for surgery.

15.  On 26 March 2021, the plaintiff was diagnosed with deviated nasal septum, acquired deformity of nose and hypertrophy of nasal turbinates. Septoplasty, rhinoplasty and turbinate reduction were done at the ENTD of TKOH. He was followed up at the ENTD of TKOH and the United Christian Hospital subsequently.

16.  According to a letter dated 20 November 2021 of Human Health, the plaintiff informed his treating doctor at Human Health that on 26 October 2021, cauterization with nasal polyp was removed by the ENTD of TKOH. I note that there is no medical note/ report from TKOH in support of the above.

17.  The plaintiff was granted intermittent sick leave from 15 March 2020 to 26 March 2022 for a total of 665 days.

EC board assessment

18.  On 12 October 2022 and 1 November 2022, the plaintiff was assessed to have suffered from 1% loss of earning capacity for “right face injury resulting in nasal blockage” by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) (Form 7). The Board maintained the same assessment at the review held on 8 November 2023 (Form 9).

19.  The Board certified intermittent absence from duty from 15 March 2020 to 14 March 2022 (653 days in total) to be necessary as a result of the injury. 

Expert evidence

20.  By an order dated 21 June 2023, the plaintiff elects not to adduce expert medical evidence as to quantum in written or oral form in this action. By an order dated 21 August 2023, the defendant is deemed not to adduce any expert medical evidence at the Assessment of Damages in this action.

21.  There is thus no expert evidence for any of the parties herein.

Assessment of the plaintiff’s credibility

22.  In assessing the credibility of the plaintiff, I bear in mind the general principles set out by Deputy High Court Judge Eugene Fung SC in his Judgment in Hui Cheung Fai & Another v Daiwa Development Limited & Others HCA 1734/2009, 8 April 2014:

“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 563at 586D-587F (Lord Nicholls) and ADS v Brothers (2000) 3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

The plaintiff’s evidence and the factual findings

23.  The plaintiff’s testimony is not subject to any challenge by the defendant as the defendant was absent from these proceedings.The plaintiff testified in a straightforward manner.

24.  Initially after the Accident and injury to his nose, the plaintiff had to use his mouth to breathe. As it was mandatory to wear masks when going out or at work during the COVID-19 pandemic, he experienced difficulty in breathing. He eventually quitted his job as a security guard in around March or April 2023 and started working as a waiter in a restaurant, with a higher monthly income.

25.  Regarding his present health condition, he testified that he only needs to take medication every night before he goes to bed to minimize the discharge of mucus and to alleviate nose blockage. He had been taking this medication prescribed by TKOH for a year and it helps. He feels better now. He confirmed that he no longer seeks medical treatment from TKOH and if he needs medication to alleviate his nose blockage, he would simply visit the pharmacy to purchase them.

26.  Overall, I find the plaintiff’s evidence credible and reliable, and I accept his evidence. I have also considered the available evidence including photos showing the plaintiff’s injuries after the Accident.

27.  Based on all the available information, I now turn to each head of claim.

PSLA

28.  In the Revised Statement of Damages (“RSOD”), the plaintiff claimed a sum of $500,000 for damages for PSLA. In the plaintiff’s written opening submissions, he revised his claim amount to $350,000 under this head. The following authorities were cited as support:-

(a)  Irving Matthew William and Anor v Man Chun Yeung and Anor DCPI 2242/2013; 23 March 2016 (PSLA at $180,000);

(b)  Yeung Shan Yee Sandy v Singway (B.V.I.) Co. Ltd and Anor DCPI 1030/2005, 24 July 2006 (PSLA at $200,000);

(c)  Cai Guoping v Yim Hok Wing and Ors HCPI 494/2013, 18 February 2015 (PSLA at $250,000); and

(d)  Wong Tsz Ho v Cheng Hoi Min t/a Kwong Yip Electric Metal Co. and Anor HCPI 52/2014; 11 September 2015 (PSLA at $280,000).

29.  In addition to the above authorities cited to me, I have also considered Naseem-Abbas and Anor v Rising Aerial Platform Company Ltd and Ors [2024] HKCFI 918 (PSLA agreed and awarded at $275,000 for the 1^st plaintiff).

30.  I have considered Irving Matthew William; Cai Guoping; and Wong Tsz Ho, and I do not think they can be of assistance. I am of the view that the injuries suffered by the plaintiff in the present case were less serious than that of the 1^st plaintiff in Naseem-Abbas but more comparable to that of the plaintiff in Yeung Shan Yee Sandy.

31.  I find that a fair and reasonable award for PSLA should be at $250,000 after taking into account the plaintiff’s injuries and treatment as well as inflation.  I award such sum as damages for PSLA accordingly.

Pre-trial loss of earnings & MPF

32.  The plaintiff claimed $306,719.98 (being 742 days’ pre-trial loss of earnings & MPF) under this head according to the RSOD.

33.  At the time of the Accident, the plaintiff was a security guard with an average monthly earnings of $11,810.55. As a result of the Accident, he was granted intermittent sick leave from 15 March 2020 to 26 March 2022 for a total of 665 days.

34.  Ms Sun relied on the case of Lo Hing Kin Nelson v The Personal Representative and/or the Executor and/or the Administrator of the Estate of Lam Yuk Wan (Deceased) and Anor HCPI 14/2012, 14 August 2015 to submit that although the plaintiff was only granted intermittent sick leave from 15 March 2020 to 26 March 2022, he should be awarded full loss of earnings for the whole period from the first day of sick leave (15 March 2020) to the last day of sick leave (26 March 2022) for a total of 742 days i.e. even for days not covered by sick leave certificates.

35.  In Lo Hing Kin Nelson, the plaintiff was a sole proprietor of a construction related business. He claimed for pre-trial loss of business and for those days in between but not covered by sick leave. Having considered the nature of the plaintiff’s business and the plaintiff’s role in his business, the court found that it is unreasonable to expect the plaintiff to come to construction site, which was instrumental to his obtaining new business and necessary for supervision of the execution of work during sick leave. In view of the medical and expert evidence of the plaintiff over the relevant period, the court found it simply unrealistic to shut the eyes to the obvious awkwardness of truncation of the plaintiff’s disability between the days of sick leave, and awarded loss during the period, not merely the precise days, covered by the sick leave.

36.  In my view, Lo Hing Kin Nelson is distinguishable. The plaintiff in this case is not claiming for any loss of business, but the usual loss of monthly earnings as an employee. Further, there is no expert evidence on the reasonableness of sick leave granted. Coupled with the Board’s assessment that only intermittent absence from duty from 15 March 2020 to 14 March 2022 (653 days in total) to be necessary as a result of the injury, I am not prepared to grant loss of earnings for those days in between but not covered by sick leave certificates.

37.  It is noted that the Board only assessed sick leave up to 14 March 2022 to be necessary as sick leave after 14 March 2022 was beyond 24 months for calculation of periodic payments. The plaintiff has provided sick leave certificates to support that he was granted further sick leave from 14 March 2022 up to 26 March 2022 for 12 days. Adding on these 12 days of sick leave which I consider to be reasonable give a total of 665 days of sick leave.  

38.  Accordingly, I assess pre-trial loss of earnings and MPF at $274,890.55 ($11,810.55 x 665/30 x 1.05) and I award such sum accordingly.

Future medical expenses

39.  In the RSOD, the plaintiff claimed that he would need to consult doctor on a need-to basis and receive symptomatic treatment for nose pain and nose obstruction. He claimed $15,000 for future medical expenses. The plaintiff submitted in his written opening submissions that he needs medical treatment for 2 years at the costs of $625 per month (i.e. total $15,000).

40.  There is no expert evidence on the need of future medical treatment. The plaintiff has confirmed in his evidence in court that he no longer seeks medical treatment from TKOH and if he needs medication to alleviate nose blockage, he would simply visit the pharmacy to purchase medicines. Each time he would purchase 6 boxes, each box at around $80. The 6 boxes would last for about 5 months.

41.  Considering the plaintiff’s injury and residual symptoms, I accept that the plaintiff might need occasional medication to relieve his nose blockage and I would allow a nominal sum of $2,000 under this head.

Special damages

42.  The plaintiff claimed $48,165 for special damages as particularized below: -

(a)  Medical expenses	$46,165
(b)  Travelling expenses	$2,000

43.  In respect of medical expenses of $46,165 under this head, the amount claimed is supported by receipts and I would allow it in full.

44.  Although there was no receipt to support the plaintiff’s claim for travelling expenses, having considered the number of visits to hospitals and clinics for treatments, I consider the amount claimed to be reasonable and I would allow it in full.

Employees compensation

45.  The plaintiff has not commenced any employees’ compensation claim but has received employees’ compensation in the sum of $240,295.45. I shall give credit to this sum.

Conclusion

46.  In conclusion, based on the aforesaid, I have assessed the damages in this case as follows: -

(A)          PSLA	$250,000
(B)           Pre-trial loss of earnings & MPF	$274,890.55
(C)           Future medical expenses	$2,000
(D)          Special damages	$48,165
Sub-total	$575,055.55
Less employees’ compensation received	$240,295.45
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	$334,760.10 =========

47.  On top of the above amount, the usual interest will be awarded at 2% per annum for general damages from date of the writ to the date of assessment and half judgment rate for special damages from date of the Accident to date of assessment, thereafter at judgment rate.

48.  I would also make an order nisi for costs that the defendant shall pay the plaintiff’s costs of this assessment, such costs to be taxed if not agreed. As the plaintiff is legally aided, the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  The above order nisi shall become absolute in the absence of any application to vary the same within 14 days from the date of this assessment.