Chan (or Tsang) Hing Lun By His Lawful Attorney Chang Yee Chor Luen v. Chung Kwok Hung

HCA007340/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Perrior in Chambers

Date of Hearing: 31st July 1987

Date of Delivery: 4th August 1987 (P.I. file)

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ASSESSMENT OF DAMAGES

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1. On the 24th April 1985, the defendant assaulted the plaintiff with what is described as an iron bar. As a result of the said assault, the plaintiff suffered two deep cut wounds to the head, two deep cut wounds to his left arm and one cut wound to his left thigh.

2. On the 30th January 1986, at the Fanling Magistracy, the defendant was convicted on his own plea of unlawfully and maliciously wounding the plaintiff.

3. The plaintiff issued a writ on the 23rd December 1986 and on the 17th March 1987 interlocutory judgment was entered with damages to be assessed.

4. Hearsay notices under 0.38 R.S.C. were served in respect of, inter alia, the medical evidence and the plaintiff's earnings as an assistant cook at a restaurant in the Netherlands. No counter-notice was served.

5. The medical evidence confirmed the plaintiff's injuries, as set out above. Also, the doctor stated that:-

6. The plaintiff claimed damages under three heads of claim namely, pain, suffering and loss of amenities, loss of earnings and the cost of nourishing food. I will deal with them in that order. Pain, suffering and loss of amenities

7. It is clear from the doctor's report that, despite the fact that the plaintiff will suffer from no permanent disability, he was severely wounded by the defendant. This fact is further borne out by the evidence of his mother.

8. Mr. Lui referred me to a number of authorities. None of them were exactly on point but I agree with him when he submitted that the closest to the present action was Lam Se-tuen and Lam Chun v. Sin Pak-tong and Ors HCA No. 1527 of 1982 where, in February 1985, Master Crawshaw awarded damages of $20,000.00 under this head.

9. I further agree with Mr. Lui when he submitted that the injuries suffered by this plaintiff, and the long post-operative care he required, when coupled with inflation since early 1985, merits a higher award. He suggested a figure of $30,000.00. I consider this to be a fair suggestion and accordingly award $30,000.00 damages under this head.

Loss of earnings

10. On the basis of the plaintiff's employer's certificate, I find that the plaintiff's average monthly earnings were 2,700.00 guilders per month.

11. In the Statement of Claim, he sought to recover loss of earnings for the period from the 24th April 1985 to the date of his return to the Netherlands, i.e. the 18th September 1985.

12. Mr. Lui quite properly conceded that, in the light of the evidence of the plaintiff's mother, he could not sustain a starting point for loss of earnings of the date of the assault. The plaintiff's mother confirmed that the plaintiff was in Hong Kong on holiday and was not due to return to the Netherlands until the end of May 1985. Hence the starting point must be the 1st June 1985.

13. The doctor stated that the plaintiff's wounds had healed by the 15th July 1985 and that when he was examined on that date, the plaintiff's condition was "satisfactory". However, the plaintiff's mother explained that, whilst this may have been so, the plaintiff's job as an assistant cook involved carrying heavy articles. I accept her evidence on this point and I further accept what she said when she went on to explain, that his wounds were still tender after the 15th July and that he was not fit enough to carry heavy articles for a further two months. The plaintiff returned to work in the Netherlands onthe 18th September 1985. This being so, I find that the plaintiff is entitled to recover loss of earnings for the period 1st June 1985 to 18th September 1985 at the rate of 2,700.00 guilders per month.

14. Accordingly, under this head, I award the plaintiff 9,720.00 guilders or its equivalent in Hong Kong currency.

Nourishing Food

15. The plaintiff claimed $2,280.00 for nourishing food. His mother explained what this was and how much it cost and stated that as he had lost so much blood through his injuries, she felt that it benefited him.

16. The conventional award under this head is $20.00 per day. The plaintiff's claim is for slightly less than this. I find it to be reasonable and accordingly award him $2,280.00 under this head.

Interest

17. There will be interest on the general damages at the rate of 2% per annum from the date of the writ to the date of this assessment and on special damages at the rate of 3.75% per annum from the 24th April 1985 to the date hereof.

18. The plaintiff shall pay the plaintiff's costs, which shall be taxed if not agreed, and there will be a Certificate for Counsel.

Representation: