Chan Wai Kit v. Wong Ko Chuen

HCA003625/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Cruden in Chambers.

Date of Judgment: 16 January 1979

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DECISION

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1. On the 26th day of May, 1977 the defendant, armed with a knife, stabbed the plaintiff in the head and body. As a consequence the defendant was charged with wounding contrary to Section 17(a) of the Offences Against the Person Ordinance, Cap. 212. To that charge he pleaded guilty in the Kowloon District Court on the 10th day of March, 1978. He was sentenced to 2 years imprisonment.

2. The plaintiff in the present proceedings alleged that he was unlawfully and maliciously wounded by the defendant and claims damages for the injuries sustained. No appearance having been entered by the defendant interlocutory judgment was entered against him on 24th November, 1978. Nor has he appeared at this hearing for the assessment of damages.

3. The medical evidence established that the plaintiff arrived at Queen Elizabeth Hospital on the 26th day of May, 1977 comatosed and in a state of shock. He also suffered from a small stab wound over the nape of the neck; a one inch chop wound over the left side of the head; multiple cut wounds over the left upper limb; a one inch stab wound over the right anterior chest wall; bruising over sternal region; a two inch stab wound over the right lower chest wall; a two inch stab wound over the left lower abdomen. During his first two days in Hospital two major surgical operations were carried out. The operative findings were that the plaintiff had suffered perforation of the small intestine; laceration of the blood vessels of the small intestine; perforation of the right side of the diaphragm with blood and air in the right chest cavity; laceration of the lower lobe of the right lung. He was in Hospital until 16th July, 1977 having been transferred to the Spinal Unit, Kowloon Hospital on 9th June, 1977. His post-operative recovery was uneventful; Dr. K.Y. Yu considered that his recovery has in fact been remarkably good. His only remaining disability is that he as some weakness of his limbs with consequent loss of agility. This results from damage to his spinal cord. However, there is no sensory loss. Dr. Yu estimated the recovery of his limbs at 80% to 90%. He was also of the opinion that the plaintiff could fully resume his former employment in one to two years.

4. I now turn to consider quantum under the following heads:

1. Pain, suffering and loss of amenities:

5. The plaintiff was the victim of a serious assault in respect of which the defendant has been convicted of the criminal offence of wounding. In addition to the actual injuries already described Dr. Yu stated that the plaintiff had to undergo two major operations within a short period and would have suffered considerable pain in the post-operative period.

6. The plaintiff asserted that he was no longer able to play basketball or football. Dr. Yu stated that his limbs and agility have been affected; that he is at present unable to play either basketball or football and will probably be unable to play those games in the future. On the other hand, he is still able to swim and his ability and enjoyment in respect of this sport is not reduced. Indeed, swimming was prescribed as part of the physio-theraphy treatment which was considered necessary by his medical advisors but which he abandoned after a short period as he claimed he could not afford the time off from work. At the time of the accident the plaintiff was a member of the Y.M.C.A. He stated that before the accident he played football six or seven times a month and basketball once a week. I am satisfied that he did play sport regularly although he conceded that he did not play either game as a member of a team in any organized competition. So this is a case where a plaintiff while a regular participant in sport did not play at a fully organised or competitive level. However, it is material that he can no longer participate in either of his two former main sporting interests.

7. The medical evidence is that the plaintiff's normal expectation of life remains unaffected. There is, however, some permanent disability in respect of the function of his limbs.

8. Taking all these factors into account I award $20,000 for pain, suffering and loss of amenities.

2. Pecuniary loss:

9. The plaintiff at the date of the wounding was employed by his father's firm, Nam Fung Plastic Factory, as a plastic machine worker earning $700 per month. He returned to work in November 1978. However, because of his partial disability he was unable to resume his former job as a machine worker and has since been employed at the factory merely as a casual worker at a reduced monthly salary of $350. However, on the medical evidence I am satisfied that in 2 years time he will be able to resume his former job as a machine worker and will then receive the higher wages payable to that category of worker. On this basis he is entitled to the $11,900 claimed as special damages for loss of earning at the rate of $700 per month for the 17 months he remained unemployed after the wounding. In addition, he is entitled to damages for his reduced loss of earning at the rate of $350 per month for the 3 months which have elapsed since he resumed work in November 1978 down until today, which produces damages of $1,050. The total loss of earnings to date is therefore $12,950.

10. As to future loss of earnings I will allow a further 2 years at the reduced wage of $350 per month. This produces $8,400 under this head and increases the total damages for pecuniary loss to $21,350.

3. Aggravated damages:

11. The plaintiff also submitted that he was entitled to aggravated damages. He had no submissions as to quantum for which he conceded there was little guidance but did refer to the passage in 1 Kemp & Kemp 'The Quantum of Damages' 103:-

"A case in which aggravated damages were awarded in a personal claim was Westwood v. Hardy 'The Times' 24.6.64. The defendant was guilty of malicious and unjustifiable conduct in the course of which he unintentionally struck the plaintiff with an autoscythe. Havers J.'s award of £550 for comparatively minor injuries included an unspecified amount in respect of aggravated damages. Provocation on the part of the plaintiff may disentitle him to aggravated damages. But such provocation cannot reduce the plaintiff's damages below the real amount due for the injury done."

12. Some of the reports deal with aggravated and exemplary damages similarly. While the difference between them may not always be clear a claim for aggravated damages is quite distinct from a claim for exemplary damages. As Kemp & Kemp point out at page 102 exemplary damages "are to punish a defendant whose conduct has been outrageous or scandalous, and aggravated damages are to compensate the plaintiff for any aggravated harm done to him, such as injury to his feelings, as a result of the special circumstances of the case." There are important procedural differences. Exemplary damages must be expressly pleaded and are restricted to three classes of cases. There appear to be no similar limitations to claims for aggravated damages. Although aggravated damages are here not expressly claimed, paragraph 1 of the statement of claim does allege that the plaintiff was "unlawfully and maliciously wounded" by the defendant. I also accept, as a matter of law, that on a claim for aggravated damages provocation may be a relevant factory to reduce the damages otherwise payable.

13. As to provocation while there may be some conflict in the earlier authorities I understand the law to be that insofar as general damages for pecuniary compensation are concerned, there should be no reduction for provocation. Provocation does not act to reduce such damages as does, for example, contributory negligence. However, when one turns to the special head of aggravated damages, provocation may, at times, in a manner similar to contribution, reduce the amount of aggravated damages otherwise payable. Strictly, however, there is no real analogy between provocation and contributory negligence. If contributory negligence is established it reduces the whole of general damages by the appropriate amount. Provocation does not reduce general damages unless they include aggravated or exemplary damages. Even then it is only the sum awarded as aggravated or exemplary damages which is reduced. The balance of any general damages awarded, can never be reduced on account of provocation. These propositions were authoritatively put forward, after a consideration of many other authorities, by McTieran J., in Fontin v. Katapodis (1962) 108 C.L.R. 177, 184 when, sitting with Dixon, C.J. and Owen J., he concluded:-

"I am inclined to the view that there ought to be no reduction of actual or compensatory damages for provocation in the case of assault and battery. It seems to me to be correct in principle to mitigate or reduce damages of the nature of exemplary damages if the plaintiff has provoked the assault and battery complained of."

14. Five years later, Lord Denning M.R. in Lane v. Holloway (1968) 1 Q.B. 379, 387, after referring to the conflict among Commonwealth authorities, came to the same conclusion. Lord Denning made these observations in respect of Fontin v. Katapodis:-

"The judge reduced the damages from £2,850 to £2,000 by reason of the provocation. But the High Court of Australia, including the Chief Justice, Sir Owen Dixon, held that provocation could be used to wipe out the element of exemplary or aggravated damages but could not be used to reduce the actual figure of pecuniary compensation. So they increased the damages to the full £2,850. I think that the Australian High Court should be our guide. The defendant has done a civil wrong and should pay compensation for the physical damage done by it. Provocation by the plaintiff can properly be used to take away any element of aggravation. But not to reduce the real damages."

Provocation therefore is of far more limited effect than contributory negligence. Provocation is only capable of reducing damages where they are awarded under the restricted heads of exemplary or aggravated damages. It is true that Fontin v. Katapodis was concerned with exemplary damages but it would seem that the same principle applies equally to aggravated damages on this issue - vide 1 Kemp & Kemp 102, and also Street, 'Principles of the Law of Damages' 22. On the pleadings, the position of the plaintiff my be stronger than in Westwood v. Hardy (supra). For the defendant pleaded guilty to the wounding charge and has never contested mens rea.

15. However, the plaintiff before me gave minimal evidence as to how he came to be attacked. He contented himself by saying that the injuries were caused when he was attacked by the defendant and that it may have been over a girl. He did not expressly negative acting in any way which might have provoked the defendant. On the other hand the defendant has not raised the issue of provocation but has let the claim go by default.

16. The onus to establish an entitlement to aggravated damages is on the plaintiff. Yet he gave little evidence as to what happened immediately before the assault. In Westwood v. Hardy (supra), on the other hand, there was evidence of rather humiliating events in the presence of third parties immediately before the assault, This led Havers J. to say of that defendant that:-

"... his conduct was wholly malicious, and the sort of conduct which, quite apart from the injury, would insult and wound the feelings of this lady."

The award therefore included a sum for aggravated damages.

17. However, provocation only becomes relevant after a plaintiff has first established a prima facie right to aggravated or exemplary damages. Here there is little direct evidence as to how or why the assault occurred. There is no evidence, although the plaintiff was called, as to his feelings or to any of the surrounding circumstances. If aggravated damages are to be awarded then they can only be awarded if humiliation, affronted dignity or similar matters of aggravation, are proven. While maliciousness is pleaded, on the evidence I could only make findings which might allow an award for aggravated damages to be made, by drawing major inferences from the evidence. I consider that the evidence here is insufficient to permit me to draw such inferences. For those reasons no award for aggravated damages will be made.

Special damages:

18. In respect of the special damages I have already awarded $12,950 for loss of earnings to date. On the other evidence I am further prepared to allow as special damages $110 for hospital expenses; $150 for travelling expenses; $700 for nourishing tonic and foodstuffs; $20 for damage to clothing; $80 for damage to pillows, bed mattress and bed sheets.

19. In the result damages are therefore awarded as follows:

20. GENERAL DAMAGES

21. SPECIAL DAMAGES

22. There will be interest on the special damages of $14,010 at the rate of 4% from the 26th day of May 1977 until today. The total damages shall be paid into Court within 14 days. On payment in there shall be payment out. The plaintiff is entitled to the costs of the action and of and occasioned by this assessment.

23. Dated this 16th day of January, 1979.

Representation:

Mr. Jenkin Chan of F. Zimmern & Co. for Plaintiff.

Defendant in person absent.