Fong Wai Mui v. Cheung Fung Lan

DCCJ024639/1998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 24639 OF 1998

Coram: H H Judge Carlson in Court

Date of Judgment: 18 December 2000

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J U D G M E N T

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1. This is a claim for damages for personal injury and it arises out of an assault which took place on 1 December 1995 when the defendant, who had had some pre-existing dispute with the plaintiff, punched the plaintiff in the face and on the chest, causing her to fall to the ground. As a result, the plaintiff suffered minor injuries.

2. The plaintiff says that she briefly lost consciousness and had some short-term amnesia. She was admitted to the Prince of Wales Hospital on the same day. She sustained a cut lip and four stitches were inserted into the cut. She was observed overnight. The hospital performed a CT scan and she was discharged the following day.

3. As a result of the incident, the defendant was prosecuted for the offence of assault occasioning actual bodily harm. She was brought before the Magistrate at Sha Tin Magistrates' Court on 12 December, pleaded guilty and was fined $2,000.

4. These proceedings were started in this court in November 1998, shortly before the expiry of the limitation period. The defendant did not enter an appearance nor a defence, and consequently, judgment in default of defence was entered against her and this matter was subsequently put over for an assessment of damages. That is how this now comes before me.

5. Today, the defendant, who has hitherto taken no part in these proceedings, appeared late after the plaintiff had closed her case. I accepted her explanation for her lateness and so the plaintiff was invited to go back into the witness-box.

6. There has been some considerable discussion between me and the defendant as to how to proceed in view of her late appearance. One of the matters which I had to consider was whether I should adjourn the enquiry today and order that the court documents which had been prepared for this assessment should be translated into Chinese, so that the defendant could follow what was being said through those documents. Of course, that would have had the effect of increasing costs, the costs of the adjournment, the costs of translation and so forth. The defendant has indicated to me that she did not wish for that course and that it would be sufficient, therefore, for me merely to explain the nature of the claim for damages.

7. I am afraid that this defendant has not shown herself to be willing to engage the issues. She has preferred to effectively argue the toss as to whether she is liable in the first place, preferring to say that it is this plaintiff who is at fault. All this in the face of what have been, in my view, repeated explanations from me as to the purpose of the hearing today, but she has simply declined to address those issues.

8. When offered the opportunity to cross-examine, she has preferred to effectively harangue the plaintiff, blaming her for the incident. I invited her to go into the witness-box and to give evidence limited to the enquiry before me today, but by her conduct, by her answers, by her speeches, she has made it very clear to me in the face of repeated explanations that she was not going to address the issue in evidence and consequently, I have formed the view that it would be a complete waste of time and really an abuse of the proceedings to allow her to go on and give evidence in that way, and so for those reasons she has not given evidence.

9. I am now left with having to assess the plaintiff's case on its merits. Her case on the assessment is set out in a revised statement of damages and, if I may say so, it is a very ambitious claim, given a very minor injury. When one takes into account interest, it comes to just short of $82,500. I am afraid, as will become apparent in a moment, my view of the worth of her claim is far more modest than that.

10. The plaintiff is now 36 years old. She was 31 when this incident occurred.

11. I will first deal with the claim for pain and suffering and loss of amenity. It has been submitted on her part that I should award her something like, at first it was put at $60,000, now I think it is said to be worth $30,000, and Mr Lui, who appears for the plaintiff, has put forward a number of what he says are comparable cases. I am afraid they are not comparable at all, so I get no assistance from them.

12. This is a very modest injury. This lady was punched, she went to the ground, she suffered a cut lip, she was looked at in the usual careful way at a general hospital and four stitches were inserted. There were no residual effects to this. This is worth $13,000, that is all this is worth.

13. I then turn to what are described as pre-trial earnings. It is said that as a result of this, she could not go to work for two months, and so there is a claim for $8,000 being loss of income at $4,000 a month. The claim is worth nothing of the sort. There is simply no reason why this lady should not have been back to work after a week. Accordingly, under this head, I award her one week's wages, $1,000.

14. In addition, she will have medical expenses at The Prince of Wales, $60.

15. I allow her $850 for consulting a herbalist.

16. I am not going to allow her $3,700 for bonesetters and tonic food. Although there is authority in Hong Kong to suggest that people who of course make up the vast majority of the community, Chinese people, are entitled to claim for consulting bonesetters and that sort of traditional medical treatment, but this injury simply does not justify that, and so this part of the claim fails.

17. I will give her $200 for travelling expenses. She put in a claim of $1,000, that includes the bonesetter and the herbalist, but I have allowed her a limited amount for the herbalist and $200 more than covers travel.

18. There is a claim for damaged clothing at $50. I think that can be safely ignored and so she gets nothing for that.

19. But I will give her $1,960 because I take the view she would have been entitled to rest at home for a week after this. These assaults can well be distressing, I appreciate that. She has three young children and it is quite right that she should have employed a babysitter: $280 a day for seven days comes to $1,960.

20. So, summarising the various elements of the claim:-

Pain and suffering, loss of amenity, $13,000;

$1,000 for loss of earnings;

$60 for medical expenses;

$850 for going to a Chinese herbalist;

$200 for travel to the herbalist;

$1,960 for the babysitter.

21. To that I shall apply some interest.

22. On her pre-trial loss of earnings, I am going to allow interest, I am afraid, only from the date of the writ at half the judgment rate. That is on the pre-trial loss of earnings from the date of the writ until judgment and thereafter at the judgment rate until payment.

23. Pain and suffering: I shall do that from the date of the writ, 2 per cent, and that will again attract interest at the judgment rate from today until payment.

24. Special damages: Again, I am going to take that from the date of the writ, half the judgment rate until today and thereafter at the judgment rate until payment.

25. There must be costs of the enquiry.

MR LUI: I ask for costs, your Honour.

COURT: Yes, you are entitled to.

MR LUI: And legal aid taxation.

COURT: And legal aid taxation, certainly.

Representation:

Mr Lui Kwan-pok, of Messrs Cheung, Chan & Chung, assigned by the Legal Aid Department, for the Plaintiff

Defendant, in person.