PUN KAI ON v. FUNG KAM WAH AND OTHERS

1990 No. A4218

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The 4 Defendants had been convicted in the San Po Kong Magistracy on 28th January 1988 of assaulting the Plaintiff so as to occasion him actual bodily harm and each was fined $1,000. As a result of the injuries sustained in this assault the Plaintiff has been unable to have sexual intercourse with his wife and claims damages for his condition.

2. Interlocutory judgment was entered against 4 Defendants on 17th September 1990 for damages and interest to be assessed and costs to be taxed.

3. The hearing of the assessment of damages was fixed far 28th November 1990 and proceeded on that date. At that hearing the purpose of the assessment of damages was explained to the 4 unrepresented Defendants. The Plaintiff gave evidence that he was 38 years of age and was employed as a housing caretaker with the Hong Kong Housing Authority. He said he was married in 1971 and had 3 teenage children aged between 13 and 16½ years. The Plaintiff stated that the 4 Defendants had assaulted him on 4th January 1988 and that he suffered injuries to his neck, back and private parts. His evidence was that he lay on the ground and was rendered unconscious in this assault. He said he later came to in the United Christian Hospital and was later transferred to the Queen Elizabeth Hospital where he had an operation on the prepuce of his penis which required 6-7 stitches. He was released from Hospital on 7th January 1983.

4. It was the Plaintiff's evidence that he did not recover completely from this operation as there is a numb feeling in the head of the penis and a dull pain near the bottom of his penis. The Plaintiff's evidence was that the pain in his penis has affected his sexual life. He says that when he is sexually excited he gets a prickling sensation in his pen is which softens at once. The Plaintiff stated that he has to get sexually aroused by his wife who has to fondle and caress him before he becomes sexually excited. Since this assault the Plaintiff says he has been unable to have sexual intercourse with his wife. Prior to this assault the Plaintiff said that his relationship with his wife was harmonious and that they had sexual intercourse about twice a week.  However, since this assault the Plaintiff said that his wife has been mentally affected over this problem and has twice talked to him about getting a divorce. His evidence was that his wife was feeling great pressure over not being able to have a normal sex life and that she has been losing weight since this incident. The Plaintiff gave evidence that his work has not been affected but that he has developed a skin allergy and that he takes medicine constantly for this condition.

5. The Plaintiff said that the problem over not being able to have sex has affected his lifestyle and his attitude to his wife. He said that his wife and himself have a sense of helplessness and great frustration over this problem. He stated that since this incident he occasionally suffer from insomnia and that sometimes he and his wife do not talk to each other.

6. In cross-examination by the 1st Defendant - FUNG Kam Wah - the Plaintiff was asked why he could not have sex with his wife after stimulation to get aroused even though he had pain in the head of his penis.  In reply the Plaintiff said that even though the prickling sensation in his penis comes and goes and that his penis only becomes hardened after caressing from his wife it softens at once when it becomes painful. The Plaintiff further explained that he has no real sex with his wife as it takes a long time to get him sexually excited and that as soon as his penis becomes erect the prickling sensation comes and the penis softens. The 2nd Defendant - HO Hei Time - in cross-examination asked if the Plaintiff had consulted a doctor about this problem of the pain felt when the penis hardened. In reply the Plaintiff said that both he and his wife had consulted a psychologist at Yung Fung Shu Clinic in Kwun Tong and on occasions a general practitioner over the problem. He said when questioned that he had been consulting the psychologist regularly up until the present time. In answer to a question the Plaintiff said that he had not been advised not to have sex after the operation to his penis.

7. The cross-examination of the 3rd Defendant - HUNG Sing Wai - was not relevant to the issues arising on this assessment apart from the question that the Plaintiff suffers no pain in his penis. In reply the Plaintiff said that he was not saying there was no pain but that it comes and goes occasionally. He also said he took medicine for his condition. The 4th Defendant - CHUNG Chau-leung - Put it to the Plaintiff that as he got older his sex life is less than when he was younger. In reply, the Plaintiff answered that it was not a matter of having less sex because he has none at all since this incident. When asked about his sex life as it was in 1971 when he was married and prior, to this, incident the Plaintiff replied that prior to 4th January 1988 he had sex with his wife twice a week and that since the date of this assault he had not had any real sex. This Defendant also put it to the Plaintiff that his problem of the penis softening soon after he became sexually excited was a deterioration of his mechanism which happens to everyone as they get older. In reply the Plaintiff said that there is no excitement and no ejaculation, so there was an abnormality in his condition. The Plaintiff disagreed that there was no effect on his sex life.

8. In re-examination the Plaintiff said that when he had no real sex with his wife he meant that he did not have sexual intercouse with her. He said that while he had other, forms of sexual contact. with his wife such as caressing and a kissing he would still like to have sexual intercourse with her which he was unable to have because of this disability.

9. An adjournment was granted to the Plaintiff without objection from the 4 Defendants to clarity whether or not corrective surgery may relieve or improve the Plaintiff's condition. The psychiatric report of Dr. Bernard W.R. Lau produced under a Hearsay Notice were read and explained to the 4 Defendant's by the Court Interpreter. The report is dated 24th may 1989 and comprised 6 pages and followed 2 examinations of the Plaintiff and his wife was interviewed on a separate occasion. The relevant portion of Dr. Bernard LAU's report is as follows:

                "The Plaintiff had known his wife for about l year before they got married in 1971. They begot 2 daughters and a son. All along he took her as an acceptable sex object and encountered no experience of dissatisfaction in sex in the past. Even when they were separated by way of residence when the wife had to stay in the home village (in China), he would return to visit several times a year and had sex each time. The Plaintiff adapted well to the local environment but he felt his wife found it hard to adjust. She became tense and was in away disillusioned with the reality she had to face in Hong Kong. She was not content with the family conditions and had expected an easier life here. The Plaintiff and his wife had quarrelled for various reasons. The Plaintiff was bothered by his wife's discontentment and was pessimistic about their future. For this reason he felt under stress from domestic disharmony. The Plaintiff said that while carrying out his normal street duties he had conflict with some people working in the neighbourhood and both parties exchanged words f discontentment. He was attacked by several men with sticks and one of them kicked him in his private parts.  As a result he sustained bruises to his chest and back and suffered a laceration at his prepuce which bled and so required suturing with 6-7 stitches.

10. Shortly afterwards the Plaintiff started to experience dull and tingling or contracting pain at the wound site of the prepuce. The skin of the prepuce was felt to have thickened and lost sensation to a certain extent if the penis remained flaccid, but a distending pain was experienced if the penis began to erect. A sharp tenderness was also complained of if the area was touched. All this was aid to have interfered enormously with the sexual activities of the couple. The Plaintiff became frustrated as a consequence, in the presence of pain upon sexual arousal. This led to decreased sex desire and he became less easily arousable.

11. Whereas, in the first years of their marriage the couple had-sex twice a week and maintained a frequency of once or twice prior to the unfortunate incident, they had rarely engaged in sexual activities after the injuries. They had altogether attempted 4 or 5 times in the past 15 months, and the Plaintiff ejaculated only once. All attempts turned out to be unsuccessful because of the interruption by pain. So he tended to stay away from bed by watching television till very late at night, and he hated his wife touching his genitalia, Indeed his wife threatened to divorce him last September (1988). The Plaintiff was pessimistic about the prognosis of his sexual inadequacy and expected it to continue for life. He realised that he would have to lose pleasure in sex, though he thought he could accept it eventually.

12. In conclusion, with reasonable medical certainties, I am of the opinion that the Plaintiff did suffer physical injuries on his body, including this private parts. The latter injuries, along with the unavoidable pain, did trigger his underlying psychic difficulty, which has been existing for some time. His tendency to withdraw from his wife aggravated the marital strain further. Together with his initial pain on erection which was inevitable during any sexual activities, he became sexually impotent, but this was functional in origin and nature. The subsequent depressive mood and lowered self-esteem, along with the discontentment towards the aggressors, worsened the situation. His subtle hostility has found a legitimate way for expression and displaced through his use of psychological defence mechanism Nevertheless, there is no doubt that he is indeed suffering from psychological damage, which could not have arisen in the absence of the unfortunate incident in which his sexual organs were hurt, which did carry a significant personal meaning. The eczema of this private parts, which might have been coincidental in view of its probably mycotic nature, reinforced his loss of sexual function. This was the last straw. I estimate that the Plaintiff's psychological impairment was about 5% of the loss of the whole person."

13. At the resumed hearing of this assessment on 26th April 1991 a medical report was produced from Dr. CHUNG Kwong-wai, a Senior Medical & Health Officer at Queen Elizabeth Hospital. In this report Dr. Chung said that at his examination of the Plaintiff on 4th February 1991 there was no stitch granuloma, no sign of paraphimosis and no sign of infection and that in his opinion further surgical intervention would he more harmful than beneficial to the Plaintiff. After production of this medical report which was explained to the 4 Defendants the Plaintiff's case was closed. Some time was spent in explaining to the Defendants their rights at that stage and all elected, neither to call witnesses nor to give evidence on this assessment. The Defence case was also considered closed at that stage.

14. The Plaintiff's solicitor, Mr. D. Warne, in his submission stated that the Plaintiff had suffered both physical and psychological injuries which followed directly from the assault on him by the Defendants. He said that the Plaintiff was sexually normal prior to this assault and had a harmonious relationship with his wife. After the assault the Plaintiff was sexually impotent and unable to have sexual intercourse with his wife because of the pain felt in his penis, when he is sexually aroused. This has caused a deterioration in the relationship with his wife and she has on occasions threatened to take divorce proceedings. The operation on Plaintiff's penis was successful in the general sense but due to the sensitive nature of the sexual organ there is no way for him to relieve the pain suffered when he is sexually aroused. This sexual disability will continue into the future as corrective surgery is not recommended.  Mr. Warne was unahle to cite any direct Hong Kong authorities relevant to this assessment. However, he relied on 2 authorities in United Kingdom. Firstly, in Miller v. Peterborough Health Auchority (March 13, 1986) where the County Court Judge had awarded £5,000.00 as general damages for pain and suffering to a 19 year old male who had suffered complete loss of his testicle's reproductive and hormonal functions - and complained of premature ejaculation and inability to maintain an erection due to psychological rather than physiological reasons following a surgical operation. Secondly, in Charlton v. Tyne Ship Repairers (December 17, 1986) where a High Court Judge awarded a 62 year old married man £5,000 as pain and suffering for impotence following an accident where he was run over by a fork-lift track. On this basis Mr. Warne submitted that £5,000.00 was the guideline for an award of damages in this case. In addition it was necessary to take into account inflation since 1986, the other physical injuries sustained in the assault in early 1988 and the deterioration and possible breakdown of the marital relationship.

15. The 2nd Defendant in his submission asked the Court to consider whether the Plaintiff's marital relationship may have deteriorated for other reasons as it had not yet broken down altogether. On the question of inflation it was suggested that wages had not kept pace with the rate of inflation over recent years. It was pointed out that the proposed figure of £5,000.00 was not a good guideline as the victim in the first case was only 19 years of age and there was no indication whether he was married and/or had any children, whereas in this case the Plaintiff was 36 years of age at the date of the assault and already had 3 teenage children. The 2nd Defendant also submitted that the Plaintiff's earning and working capacity had riot been affected by the injuries sustained in the assault.

16. The 3rd Defendant in his submission claimed that Plaintiff's wife was not so keen on sexual relationships with the Plaintiff. In support of this contention was the Plaintiff's evidence that he or is wife had never used any contraceptive device and she had not become pregnant over a ten year period prior to the assault.  It was also suggested that for this reason the Plaintiff was incapable of having sexual intercourse with his wife prior to being assaulted as the 3 children had all been born over 10 years previously.  It was also pointed out that the pain suffered by the Plaintiff when he was sexually aroused was most likely to have been caused by the surgical operation on his penis over 3 years ago. The 3rd Defendant also claimed that the Plaintiff contributed to his injuries to a certain extent when he was hit with the pole he was carrying at the time of the assault.

17. The 4th Defendant in his submission said that the incident took place over 3 years ago when Plaintiff was admitted to hospital for a few days to recover from his injuries which had not affected either his earning capacity or his physical condition. It was claimed that the Plaintiff's sexual ower was inadequate due to his and that his injuries had not affected his impotence. This Defendant also claimed that the Plaintiff had contributed towards his injuries so that the 4 Defendants were not entirely responsible.

18. The 1st Defendant submitted that the Plaintiff in making this claim may be exaggerating to a certain extent as the Defendants were not doctors. Both the Plaintiff and Dr. Bernard LAU gave evidence that he was capable of having an erection so that it was claimed he was capable of or had good chance of performing sexual intercourse. Further it was pointed out that as the Plaintiff's claim relies on his claim of impotency he would try not to disclose the frequency of his having sexual intercourse with his wife. Even if the Plaintiff and his wife quarrel or fight with one another this may not affect the marital relationship It was claimed by this Defendant that social workers could counsel and assist the Plaintiff and his wife in overcoming these problems.

19. The evidence of the Plaintiff and Dr. Bernard LAU in his report on the Plaintiff is accepted. In particular the conclusion reached by Dr. Bernard LAU in the final paragraph of this report has not been challenged and must be accepted as proof of the Plaintiff's existing condition. There is nothing to suggest that the Plaintiff's condition will improve in the future so he must be considered as impotent since the date of the assault on 4th January 1988. I do not accept that suggestion raised by several Defendants in their submissions that the Plaintiff contributed to some extent in the injuries received by him in this assault. Regardless, if contributory negligence was an issue in this case it should have been raised by the Defendants in their Defence prior to interlocutory judgment being entered against them on 17th September 1990.

20. The real issue in this case is the monetary value to be awarded to the Plaintiff for his condition which will persist throughout his lifetime. There have been no authorities in Hong Kong to which the Master has been referred and reliance is placed on two authorities in the United Kingdom in 1986 where £5,000.00 was awarded in each case where Plaintiffs had been rendered impotent because of injuries. However, in those cases one Plaintiff was young being only 19 years of age and the other was old at 62 years of age. In this case the Plaintiff was 36 years of age at the date of the assault and 38 years of age as at the date of this assessment. As the Master is unaware of any Hong Kong authority, reliance will be placed on the United Kingdom authorities and these will be used as a guideline as suggested by the Plaintiff's solicitor, Mr. D. Warne. After taking into account inflation over the 5 years since 1986 and the injuries received in this assault the sum of $81,000.00 will be awarded to the Plaintiff for the pain and suffering received in and arising from his assault in early 1988.

21. There will be interest on this sum of $81,000.00 awarded as general damages at the rate of 2% from the date of the writ to the date of judgment on this assessment. The 4 Defendants to pay the plaintiff's costs of this assessment on the District Court scale, if not agreed. Plaintiff's own costs to be taxed under Legal Aid Regulations.