CHIU CHUNG SAN v. PARK SUNG JIN

DCPI 1124/2022

[2024] HKDC 1297

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1124 OF 2022

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J U D G M E N T

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INTRODUCTION

1.  This is the assessment hearing of the claim by the Plaintiff Mr Chiu Chung Shan (“P”)  for damages for personal injuries sustained by him as the victim of an assault on 27 April 2019 (“Assault”).

2.  P was 63 years old at the time and is now 68 years old.  He was working as a night shift taxi driver when he had the misfortune of being assaulted by the Defendant Mr Park Sung Jin (“D”), the passenger on board his taxi.

3.  Interlocutory judgment on liability was entered on 10 October 2022 against D, leaving damages to be assessed.

4.  D was all along legally represented in these proceedings until recently on 13 June 2024 when he filed a Notice to Act in Person (in place of his former solicitors Messrs Lee Law Firm)  dated 7 June 2024.

5.  D was absent at the hearing.  This court is satisfied that D had due notice of the assessment hearing when he was legally represented. Proper service of trial documents including the assessment bundles, P’s opening submissions and list of authorities (with the authorities)  has been effected on D.  This hearing proceeded in the absence of D.

6.  P was the only witness of fact called at the hearing.

7.  D elected not to call any factual or medical expert evidence.

8.  P sustained serious multiple injuries in the Assault.  He has adduced medical expert evidence in support of his claims in the specialties of neurosurgery, ophthalmology and psychiatry as set out hereinafter in this judgment. 

9.  An order was made for the medical expert evidence to be adduced without calling the experts for oral evidence at trial.

PREPARATION OF HEARING BUNDLES

10.  This case does not involve complicated medical or quantum issues.  The assessment bundle, comprising of pleadings, court orders and all factual and medical evidence on quantum, is all contained in one box file.

11.  This court however noted with disapproval that P’s legal team saw it fit to submit with P’s opening submissions 2 box files of annexures containing 6 full annual and monthly reports on Consumer Price Indices (each of about 120 pages)  of 6 different years since year 2000.  Mr Acorn Lau, counsel for P, explained that these would assist the court in calculating inflationary rates in the assessment of PSLA awards. 

12.  This is wholly unnecessary, but an unjustifiable waste of resources and costs.  Practitioners are reminded to exercise prudence when compiling hearing bundles, and should submit only documents that are necessary and directly relevant to the issues before the court.

INJURIES AND TREATMENT

13.  P sustained severe multiple head, right eye and facial injuries as a result of the Assault.  He was admitted to the Department of Accident & Emergency of North Lantau Hospital immediately for treatment.

14.  Physical examination revealed:

(i)  Severe swelling and bruises on the right eyelid and bilateral periorbital bruises;

(ii)  Right eye microhyphema;

(iii)  Multiple bruises over the right forehead;

(iv)  A 3 cm laceration and haematoma over the right occiput;

(v)  Blood clot in the nose;

(vi)  Fracture of lateral wall of the right orbit;

(vii)  Traumatic subarachnoid haemorrhage;

(viii)  Right temporal, right frontal, right temporal and quadrigeminal cistern haemorrhage; and

(ix)  Right frontal and anterior falcine acute subdural haemorrhage.

15.  P was transferred to the Neurosurgical Unit of Princess Margaret Hospital (PMH)  for further management.  He was treated and managed conservatively.  Serial cerebral CT scans showed gradual resolution of haemorrhage and gradual recovery of cognition.  He was hospitalised for more than 3 weeks and was discharged on 20 May 2019.  His bilateral visual acuity was very poor at 20/200.

16.  On 17 June 2019, laser iridotomy was performed on both eyes for narrow angle at the Department of Ophthalmology of Caritas Medical Centre (CMC), followed by fundal examination on 24 June 2019.  It showed epiretinal membrane at the macula of the left eye.

17.  P was referred for clinical psychological services by the Neurosurgery Unit of PMH.  Cognitive assessment revealed the following:

(i)  Cognitive impairment in executive functioning, working memory, delayed recall and fluency;

(ii)  He was not able to recall his personal history accurately with confabulation observed; and

(iii)  He lacked insight of his physical and cognitive conditions.

18.  He continued to attend follow up and receive treatment at the Department of Ophthalmology of CMC and the Neurosurgery Unit of PMH.

19.  Visual acuity improved upon follow up, with right eye 20/40 and left eye 20/60.  P had to walk with a stick for stability and for safety reasons.

20.  Visual field investigation conducted on 19 October 2020 showed left homonymous inferior quadrantanopia.  P also suffered gradual drooping of the left upper eyelid.  On 15 August 2021, he was admitted to the Department of Ophthalmology of CMC for the procedure of left upper lid blepharoplasty for dermatochalasis.  He was discharged on 18 August 2021.

21.  Post-procedure examination on 23 November 2021 revealed bilateral cataracts, left eye epiretinal membrane and bilateral superior oblique palsy.  Unaided visual acuity remained poor at 0.2 (0.4 with pinhole)  over the right eye, and 0.7 over the left eye.

22.  On 23 February 2022, follow-up CT scan at CMC reported right parietal lobe encephalomalacia, small vessel disease, with findings of no interval change and no orbital lesion.

23.  Due to the unresolved ophthalmological and neurological impairments, P’s mood and psychiatric conditions deteriorated.  He was referred for clinical psychological services at PMH.  He showed some improvement upon follow up in October 2019 as follows:

(i)  MoCA-HK score at the >12^th percentile with age and education level adjusted, indicating improvement in his cognitive condition;

(ii)  However, he was found to have adjustment disorder with anxiety features;

(iii)  His condition was improved after engagement in cognitive behavioural therapy focused on realistic appraisal and behavioural activation; and

(iv)  He showed good response to the support from a girlfriend who came from the USA to visit him around that period.

24.  P’s mood deteriorated further with significant increase of anxiety and depressive features despite treatment since November 2019.  As shown in the medical records, his distress was exacerbated by a number of stressors including:

(i)  Health problems, which included ptosis of his right eye and difficulties in balancing;

(ii)  Lacking support as his friend had returned to the USA and had no plan to return to Hong Kong; and

(iii)  Financial difficulties as he could not work as a result of the injuries.

25.  He presented to be anxious and pre-occupied with suicidal ideation, and was referred for psychiatric treatment and outpatient service since around January 2020 at the Department of Psychiatry of Kowloon Hospital (KH).

26.  His mental condition remained fluctuated in reaction to his physical problems upon psychiatric treatment with medications.  He was referred to medical social workers for financial assistance.  He has been living on social assistance and financial help from siblings.

PERMANENT DISABILITIES/IMPACT ON P

27.  Despite lengthy treatment and follow up in the past 5 years, P has suffered and continues to suffer permanent neurological, both eyes and psychiatric disabilities as set out in the medical expert reports set out hereinbelow.

28.  As of now, P continues to attend regular ophthalmological and psychiatric follow ups at CMC and KH respectively about once every 3 to 4 months.

29.  P is a divorcee and has been living alone all along.  He enjoyed good health prior to the Assault.  He was sociable and enjoyed meeting and travelling with friends.  He was energetic and engaged in active exercises of hiking and water sports.

30.  His evidence is that as a result of the serious injuries sustained in the Assault, he cannot really do any exercises now.  He has become withdrawn and lives a lonely life, struggling to take care of himself in daily living activities.  He had to rely on others to take care of him.

31.  He has to walk with a stick due to poor vision, and needs friends’ help when going out.  He cannot do household chores such as cooking, cleaning or doing the laundry.  He cannot go out to do shopping for food or groceries.  He relies on home care social services of home delivery of meals (once a day)  provided by the Home Care Services Team of Sheng Kung Wui Welfare Council.

32.  Due to impaired vision causing ambulatory difficulties and cloudiness of the head, he was rendered unable to drive and could not resume any work in the past few years.

33.  P’s case is that currently he has remained highly disabled, to the extent that he is unable to take care of himself safely at home.  There were instances when he forgot to turn off the stove when cooking and he slipped and fell due to poor vision.  He requires assistance in his daily living activities.

34.  He was advised by the treating doctors at CMC on the need for a future right eye lens implant operation.  Arrangements were made for him to undergo the operation at CMC in 2026.

35.  P’s evidence is that if he has the financial means, he would no doubt seek treatment and have the right eye operation in the private sector soonest possible, hopefully to improve his vision and his independent living capacity.

MEDICAL EXPERT EVIDENCE

36.  P was assessed by medical experts in different specialties on the multiple injuries sustained.  The following solo experts reports have been adduced in evidence:

(i)  Neurosurgery Expert Report dated 29 May 2023 by Dr Kan Yiu Ting (Dr Kan/NER);

(ii)  Ophthalmology Expert Report by Dr Cheung Sek Hong dated 31 May 2023 (DrCheung/OER); and

(iii)  Psychiatric Expert Report by Dr Benjamin Lai dated 11 April 2023 (Dr Lai/PER).

37.  There is no question, as all experts conclude, that P’s present and permanent disabilities were caused as a direct result of the severe head and orbital injuries sustained in the Assault.

38.  For present purposes, it should suffice to set out a summary of the medical experts’ opinions on the present and permanent disabilities of and impact on P’s work capacity and daily life.

Neurosurgery Expert

39.  As set out in the NER, Dr Kan noted at the time of assessment on 16 May 2023 poor visual acuity of the right eye with diplopia and binocular vision.  P has difficulty in reading and has to cover the right eye with an eye-shield to prevent diplopia.  He uses a cane to move around outdoors because of the loss of appreciation of depth/distance with monocular vision and poor balance.

40.  He has cognitive impairment with complaints of forgetfulness, poor memory, retarded response and cloudiness in thoughts.

41.  The visual deficits with the ensuing mobility impairment, cognitive regression and financial difficulty have generated a deep depression in P.  He has a grey outlook in life and reported to have harboured suicidal ideation.

42.  Dr Kan opines that P has sustained a serious head injury, which had affected his brain and mental functioning.  Grave psychomotor impairment would be expected.  He suffers permanent impairment and loss of earning capacity both physically as well as psychiatrically. 

43.  He should continue to receive medical treatment for his eyes and psychiatric conditions.

44.  It is clear that P cannot resume driving work.

45.  Dr Kan assesses permanent neurological impairment of the whole person and loss of working capacity both at 10%.

Ophthalmology Expert

46.  Dr Cheung opines, as set out in the OER, that P suffered in the Assault intracranial haemorrhages, both eyes periorbital bruises and right eye microhyphaema which in turn resulted in right parietal encephalomalacia causing left homonymous inferior quadrantanopia and right eye posterior subcapsular cataract.

47.  P should not drive for his own and other road users’ safety.  He would be suitable for jobs as a messenger, general labourer, security guard, etc.

48.  P had received appropriate treatment at the Department of Ophthalmology of CMC and he has reached maximal eye improvement.  His right eye vision should benefit from phacoemulsification with lens implant operation.  The cost of the operation in the private sector is approximately $40,000 to $50,000 inclusive of eye consultations, surgeon’s fee and charges for the use of operation theatre, consumables, lens implant etc.  Improvement of right eye visual activity would be expected after the operation.  

49.  P is assessed to have a normal or near normal ability to perform activities of daily living, but with lost reserve capacity.

50.  Dr Cheung assesses permanent whole person impairment in respect of the visual system of both eyes at 14.5% (comprising of 2% acuity-related and 12.5% field-rated impairments respectively), and loss of earning capacity at 16.5%.

Expert in Psychiatry

51.  As set out in the PER, P was noted to continue to suffer psychiatric symptoms of low mood, wakeful sleep, unstable mobility, irritability, poor memory and negative emotions associated with the circumstances of the Assault, mainly due to the visual problems and financial difficulty due to inability to return to work as a taxi driver.

52.  Dr Lai concludes that P has suffered a neurocognitive disorder due to traumatic brain injury.  Psychiatrically, he continues to suffer adjustment disorder with mixed anxiety and depressive mood.

53.  The psychiatric conditions were caused by the Assault and its aftermath.  P would likely requireanother year of psychiatric treatment of both medicines and psychotherapy, or the psychiatric treatment can be terminated about 6 months after conclusion of the present litigation whichever is later.

54.  Dr Lai assesses permanent impairment of the whole person andloss of earning capacity based on P’s psychiatric condition at about 10%.  He cannot engage in driving or work of a high degree of memory functioning.

QUANTUM OF CLAIM

Pain, Suffering and Loss of Amenities (“PSLA”)

55.  P suffered severe head injuries in the Assault which was no doubt a frightening and traumatic experience.  Serious head injuries were inflicted which resulted in permanent neurological, bilateral eyes and psychiatric impairments and disabilities.  He was hospitalised for more than 3 weeks and required lengthy conservative treatment.

56.  On the overall medical evidence and having heard P’s evidence on his disabilities due mainly to the right eye visual activity problems, this court accepts that he was rendered not able to assume any work in the past few years.

57.  I accept P’s submissions that the combination of P’s injuries should be placed within the upper end of  the “serious injury” category as defined in Lee Ting Lam v Leung Kam Ming (Civil Appeal No 11 of 1980):

“Serious Injury”: This is the lowest category. It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.

58.  The bracket for “serious injury” has been increased over the years to a range of $530,000 to $715,000 with reference to inflationary rates in 2016 and 2017 as revised by Bharwaney J in David John Slater v Commissioner of Police (HCPI 646 of 2012, 7 July 2017).  It was further increased to $548,000 to $740,000 by 2018 [Personal Injury Tables Hong Kong 2019, p 65].

59.  P seeks damages for PSLA at $800,000.  I have considered the following cases referred to by counsel Mr Lau involving ophthalmological, neurological and psychiatric injuries:-

  Bokhim Dil Kumar v Dragages Hong Kong Limited [2020] HKCFI 3136

  Cheng Cho Fai v Law Ka Chung (unrep, HCPI 1005/2006, 29 August 2008)

   Wong Kai Fun v Sun On Logistics Ltd (unrep, HCPI  196/2015, 26 May 2017)

  Yan Kwok Yue v Dong Shu Kei (unrep, HCPI 923/2000, 22 January 2002)

60.  PSLA awards were made in the above cited cases in the range of $550,000 to $700,000 for injuries comparable to or slightly less serious than those suffered by P in the present case.

61.  I accept that the totality of P’s injuries and disabilities would justify an award for PSLA of $750,000.

Pre-Trial Loss of Earnings

62.  P had worked as a night-shift taxi driver for over 10 years.  He worked 26 days a month and earned a total of about $25,000 per month.  He received all earnings in cash.  He has not reduced any documentary evidence such as tax records, taxi rental receipts or expenses receipts in support.

63.  For the purposes of assessing pre-trial loss of earnings, P proposes to adopt the average monthly salary of a male driver in the sum of $17,810 as stated in the Quarterly Report of Wage and Payroll Statistics (First Quarter 2019)  issued by the Census and Statistics Department, following the approach of Ng J in the judgment of Thapa Goma v Tina Global (HK)  Limited [2019] HKCFI 471 at §105.

64.  This is reasonable; I accept P’s claim for pre-trial loss of earnings as submitted.  This should cover the whole of the pre-trial period (from 27 April 2019 to trial)  as follows:

$17,810 x 63 months  $1,122,030

Future Loss of Earnings/ Loss of Earning Capacity

65.  P is now aged 68.  He enjoyed good health and various sports, and worked hard prior to the Assault.  His evidence is that he would have continued to work as a taxi driver until beyond age 70 but for the unfortunate Assault.

66.  It is not an unusual phenomenon in this economic climate that self-employed taxi drivers do work beyond age 70.  I accept P’s claim for future loss of earnings for 2 years from his current age of 68 up to a retirement age of 70.

67.  Future loss of earnings is assessed on a future multiplier of 1.98 in accordance with [Table 11: Personal Injury Tables Hong Kong 2019 (Pension Age 70, Males)], adopting a discount rate of -0.5% , as follows:

$17,810 x 12 x 1.98  $423,166

68.  No award for loss of earning capacity would be appropriate upon a provision for full future loss of earnings being made.

Other Special Damages/Misc Expenses

69.  P claims other special damages/misc expenses incurred and paid in respect of medical, travelling and tonic food expenses in the respective sums of $10,000, $8,000 and $20,000.

70.  He gave evidence that he had all along received treatments and attended follow up in the public hospitals for which he paid around $100 per session. Some receipts have been adduced in evidence.

71.  He had to travel by taxi due to impaired vision and difficulty in taking public transport when attending medical follow up during the past 5 years, but did not keep the receipts.  He frankly admitted that he had not purchased or consumed tonic food for enhancing recovery.

72.  I make an award of $18,000 for reimbursement of medical and travel expenses incurred.

Future Medical, Travelling and Tonic Food Expenses

73.  P continues to attend ophthalmological follow up at CMC and psychiatric follow up at KH.  He was responsive to treatment and his psychiatric and mental conditions have been stable.  There is no claim that he will require or plans/wishes to have follow up in the private sector.

74.  Dr Lai opines that P should continue with psychiatric treatment and clinical psychology services for another year (from the date of examination)  or until around 6 months after the conclusion of the present action.

75.  There is no dispute on the medical evidence, as advised by Dr Cheung and P’s treating doctors at CMC, that P’s severely impaired right eye vision would be improved by a phacoemulsification with lens implant operation.  The cost of the operation in the private sector is estimated at $40,000 to $50,000.  Arrangements have been made for P to undergo the operation at CMC in 2026.

76.  On the clear evidence that P has plans to undergo the operation and it is likely to take place in the near future, this claim for operation cost should be allowed: Lam Kwong Ting v Ho Yau Yuen & Anor [1990] 2 HKC 381.

77.  I consider it reasonable that D should be responsible for the cost of an early operation in the private sector.

78.  I make an award for future medical and travelling expenses in the sum of $60,000.

Future Domestic Help Expenses

79.  P’s case is that in his disabled conditions, he requires full time help of a foreign domestic helper to assist him in his daily living needs.  He claims damages for future domestic help represented by the minimum wage of a foreign domestic helper at $4,730 per month until he reaches age 70.

80.  The evidence is that P has not incurred or paid any domestic help, part-time or full time, expenses during the past 5 years when he had continued to live alone.  He sometimes had help from friends or his siblings, and has been relying on daily meals delivery service (at $29 per meal)  with the assistance of the home care social services.

81.  It is understandable that P, with his severely impaired right eye vision, would be greatly inconvenienced in most, if not all, of his daily living activities.  There is however, other than his subjective complaints, no medical or expert evidence in support of the claim that he cannot cope with daily living activities or that he is dependent on others for assistance. Expert in ophthalmology Dr Cheung assesses P to have normal (or near-normal)  ability to perform activities of daily living though with lost reserve capacity.

82.  I consider that on the evidence, a claim for full-time domestic help is not made out.  Also, P’s right eye vision would be expected to improve after the eye operation, after which he should become independent in his daily living.

83.  I consider it reasonable to make a provision for part-time domestic help of say once or twice a week for groceries shopping and household cleaning chores, at say $2,000 a month for about a year.  I make a lump sum award of $30,000.

Interest

84.  Interest on PSLA is assessed at the usual 2% p.a. from the date of the writ of summons to the date of judgment. Interest on all pre-trial special damages is assessed at half of the judgment rate from the date of the Assault to the date of judgment, and thereafter at judgment rate until payment.

SUMMARY ON QUANTUM

85.  I summarise the award for P’s claim for damages as follows:

PSLA	$750,000
Pre-trial loss of earnings	$1,122,030
Future loss of earnings	$423,166
Loss of earning capacity	nil
Other special damages/misc expenses	$18,000
Future medical and related expenses	$60,000
Future domestic help expenses	$30,000
Total:	$2,403,196	(plus interest)

ORDER

86.  I therefore make an order that D do pay damages to P in the sum of $2,403,196 plus interest.

87.  Costs should follow the event.  I make an order nisi that D should pay P the costs of this action, to be taxed if not agreed, with certificate for counsel.  P’s own costs to be taxed in accordance with the Legal Aid Regulations. 

88.  In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.

89.  Lastly, I thank counsel Mr Lau for his assistance.