Cheng Chi Ming v. Li Chau Wan and Another

HCPI 1028/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1028 OF 2002

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BETWEEN

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Before : Hon Suffiad J in Court

Dates of Hearing : 7 - 9 June 2005

Date of Judgment : 8 July 2005

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J U D G M E N T

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1.The plaintiff brings this claim against both defendants claiming damages for personal injuries sustained by him when he was assaulted by the two defendants on 2 September 2000 at the Glorious Garden Market in Tuen Mun which left the plaintiff with a fractured tibia in his right leg and knee.

Background

2.The plaintiff was employed by Wong Lai Mui (“Wong”) as a butcher and works at the Fu Lai Meat Company operated by Wong at Shop 32, Glorious Garden Market, Tuen Mun, New Territories, Hong Kong.

3.The 1^st and 2^nd defendants are mother and son and together run another meat stall owned by the 1^st defendant’s husband at Shop 34, Glorious Garden Market.  The defendants’ meat stall is immediately adjacent to the Fu Lai Meat Company where the plaintiff works.

4.Both the Fu Lai Meat Company and the defendants’ meat stall started operation in about July 1999.

5.All along, the relationship between Wong and the 1^st defendant had been acrimonious due to the fact that both operated meat stalls and both touted for the same customers.

The plaintiff’s case

6.On 2 September 2000, at about 2 p.m. the plaintiff was not feeling well and had gone up to the cockloft of the Fu Lai Meat Company to rest having taken some medicine.

7.He heard Wong calling to him and came downstairs.  He saw the 1^st defendant pushing Wong to near the refrigerator of the shop.  Wong was holding a meat cleaver in her hand.  He told them to calm down and told Wong to put down the cleaver.

8.The 1^st defendant then pulled Wong out of the shop and into the corridor near a fish stall opposite.  In the process Wong fell to the ground.

9.The plaintiff followed them out to mediate.  When the 1^st defendant still tried to push Wong, the plaintiff tried to separate the two of them by stretching out his hand between the 1^st defendant and Wong.

10.At this time, the 2^nd defendant came up from behind the plaintiff and put his arm across the plaintiff’s neck from behind strangling the plaintiff.  A struggle ensued between the plaintiff and the 2^nd defendant. 

11.During that struggle, the plaintiff and the 2^nd defendant fell to the ground.  The plaintiff falling on his right side with the outside of his right knee hitting the ground.

12.When the two of them were on the ground, the 1^st defendant stepped on the inside of the plaintiff’s right calf.  The 1^st defendant had also pulled the plaintiff’s hair several times.

13.After the two of them had been separated by onlookers, the plaintiff tried to get up from the ground, he found that his right knee was so painful that he could not get up onto his feet.  He was then helped onto his feet by others and given a chair to sit on.

14.Police and later an ambulance were called to the scene and the plaintiff taken to hospital.

15.The above is a summary of the plaintiff’s evidence as to the assault.

16.The plaintiff called Wong as a witness and her evidence largely supported what the plaintiff had told the court.  She specifically told the court that she saw the 1^st defendant pulling the plaintiff’s hair and stepping on the plaintiff’s leg while the plaintiff was on the ground.  There were however some discrepancies relating to the order in which it happened.

17.The plaintiff also called Chan Shui Ho as a witness.  Her evidence also supported what the plaintiff had told the court in a general way relating to the incident.  She gave evidence that she saw the 1^st defendant pull the hair of the plaintiff and step on the plaintiff’s leg while he was on the ground.  There were also some discrepancies in the details of what had happened and the order in which it happened.

18.The discrepancies in the evidence of the plaintiff and his two witnesses will be dealt with later in this judgment when I come to make the finding of the facts in this case.

The defence case

19.In the case of the 1^st defendant, it is not disputed by her that at the material time, she did go into the Fu Lai Meat Company and that a quarrel did take place between her and Wong relating to touting of customer.

20.It is also accepted by the 1^st defendant that at some stage when the 1^st defendant was having this quarrel with Wong, the plaintiff came down from the cockloft at the behest of Wong.

21.The 1^st defendant agreed that after Wong had put down the meat cleaver, she (the 1^st defendant) had pulled Wong out of the shop to the corridor near to the fish stall opposite and there Wong fell to the ground.

22.When the 1^st defendant then turned around upon hearing some noise behind her, she saw the plaintiff and the 2^nd defendant grappling with each other in a struggle.  She rushed over to where the two of them were struggling and both the plaintiff and the 2^nd defendant fell onto the ground.

23.Other onlookers tried to mediate and separate the plaintiff and the 2^nd defendant and after a while, they were separated.

24.The 1^st defendant denied having at any time during the incident either pulled the hair of the plaintiff or stepped on his right leg and denied having assaulted the plaintiff in any way.  Accordingly, her defence is that she was not a party to assaulting the plaintiff and did not assault the plaintiff.

25.As for the 2^nd defendant, it is his case that at the material time, he was aware that the 1^st defendant had gone into the Fu Lai Meat Company of Wong and a quarrel had taken place between Wong and the 1^st defendant over touting of customers.  He however remained outside his own meat stall (which was adjacent to Fu Lai Meat Company) and did not see what went on inside Fu Lai Meat Company between Wong and the 1^st defendant.

26.Subsequently, Wong and the 1^st defendant came out of the Fu Lai Meat Company followed by the plaintiff.  The quarrel between Wong and the 1^st defendant continued in the corridor of the market as they went over to near the fish stall.  He saw the plaintiff using foul language and shouting at the 1^st defendant while the quarrel was going on.

27.When the plaintiff raised his hand appearing to strike the 1^st defendant, he (the 2^nd defendant) came up from behind the plaintiff and put both his arms around the chest of the plaintiff in order to prevent the plaintiff from hitting his mother, the 1^st defendant.  The plaintiff started to struggle with him, turned round and wanted to hit him.  The plaintiff did scratch him in his right armpit causing some scratch injuries.  As they were grappling with each other, both lost their balance and fell to the ground, the plaintiff fell on top of him facing him.

28.The defence therefore of the 2^nd defendant was that what he did vis-à-vis the plaintiff is justified as it was done by him to restrain the plaintiff from committing a criminal act, namely an assault on the 1^st defendant, his mother and that he had not used unreasonable or excessive force in doing so.

29.The defence called one defence witness, Ting Chan Hung who was present at the incident during the struggle between the plaintiff and the 2^nd defendant.  He operates a vegetable stall at Shop 30 of the same market.

30.Briefly, his evidence was that in the afternoon of that day, he heard noises outside his stall, he looked out and saw the plaintiff and the 2^nd defendant grappling with each other.  He walked over to take a look and saw the plaintiff and 2^nd defendant on the ground but neither could move as both refused to give in.  Finally other people around mediated and separated them, but the plaintiff could not get up saying his leg was painful.  He then took a chair for the plaintiff to sit on.  Later police arrived.

31.He did not know what the dispute was, he only saw the plaintiff and 2^nd defendant grappling with each other with no one else, including the 1^st defendant, involved.

Finding of fact

32.I accept the plaintiff to be an honest and truthful witness in the account he gave of the incident in question.  Although not the most articulate of witness, he was doing his best to tell the truth of what had happened.

33.In the case of Wong Lai Mui, I keep in mind that she has an axe to grind with the 1^st defendant (which probably spill over to affect the 2^nd defendant) in that there had been a history of acrimony between them when it came to touting of customers.  Moreover, she did not impress me as a witness because she seemed to be unable to listen to and answer the question asked of her but says what she intends to say, very often with no relation to the question asked of her.  In that sense she is unreliable as a witness.

34.As for Chan Shui Ho, although she is of low education and not articulate in speech, she did impress me as an observant and honest witness who again did her best to assist in giving a true picture to the court of what had transpired during the incident in question.  I have no difficulty accepting her evidence.

35.I am very skeptical of the evidence given by both defendants.  Their evidence quite patently was designed to disassociate themselves from what had happened.  However they were faced with the fact that what had happened had been seen by a number of people so that they were confined to the general framework of the incident in question.  Within that framework they had tailored the details of their evidence, no doubt with a view to extricate themselves from liability in this matter.

36.This is particularly so in the case of the 2^nd defendant whose credibility had been shown to be greatly affected by many of the more important parts of his evidence which I shall deal with shortly.

37.Admittedly, there were discrepancies in the plaintiff’s own evidence.  The major discrepancy was that in his witness statement (which he adopted as his evidence) he had stated that the 1^st defendant had pulled his hair after he had fallen onto the ground grappling with the 2^nd defendant.  But in cross-examination, he said that his hair was pulled by the 2^nd defendant when he was struggling with the 2^nd defendant before he fell onto the ground.

38.Both his witnesses, Wong as well as Chan Shui Ho stated that the plaintiff’s hair was pulled by the 1^st defendant after he had fallen on the ground.

39.That is not such a discrepancy as to cause me to disbelieve the plaintiff.  In all the confusion of what happened, it is understandable that the plaintiff could well have forgotten the order in which different things happened.  The important thing is that all three of them attested to the fact not only that the 1^st defendant did pull the hair of the plaintiff but that she also stepped on the plaintiff’s leg when he was on the ground.

40.The plaintiff was criticized in cross-examination for not having mentioned in his cautioned statement and interview record when interviewed by the police that he had been stepped on by the 1^st defendant, the suggestion being that it did not happen.

41.However, considering that the plaintiff was cautioned for fighting with the 2^nd defendant, it would not automatically follow that he should have mentioned being stepped on by the 1^st defendant in answer to such caution.  Even if the 1^st defendant had stepped on him during the incident, that action by the 1^st defendant would not be something which would be directly relevant to fighting with the 2^nd defendant for which he was cautioned by the police.

42.I therefore do not consider such omission by the plaintiff to mention it in his cautioned statement as casting any doubt on the veracity of his evidence in that respect.

43.When cross-examined, both Wong and Chan Shui Ho were asked why they did not mention when giving evidence in the criminal proceedings in the Magistrate’s Court that the 1^st defendant had stepped on the plaintiff after he had fallen onto the ground.

44.Wong explained that she was not asked about this in the Magistrate’s Court proceedings.

45.In the case of Chan Shui Ho, the transcript in the proceedings in the Magistrate’s Court shows that she had said in evidence there that “[the 1^st defendant] pulled his hair and knelt down on his leg, right leg.”

46.Bearing in mind that the proceedings in the Magistrate’s Court related to the plaintiff being the accused and charged with fighting with the 2^nd defendant, it may not be at all surprising that the prosecutor or even the cross-examiner did not consider the relevance of the plaintiff having been stepped on by the 1^st defendant and therefore did not explore that aspect of it.

47.Secondly, the evidence from Chan Shui Ho shows that she did give such evidence although she used the word “knelt” instead of “stepped on”.  Being the inarticulate witness that she was, that is again not surprising.

48.I am not persuaded by this that they made up the story of the plaintiff being stepped on by the 1^st defendant.  In this respect, no similar questions were asked of them as to what they had (or had not) stated in their witness statements to the police.

49.As for the defendants, in the case of the 1^st defendant, she is clearly the initial aggressor in this entire incident, going into the Fu Lai Meat Company to confront Wong, and then, of her own admission, pulling Wong out of the shop after Wong had put down the meat cleaver.  Moreover, she did not deny pushing Wong to the ground outside the fish stall, nor did she deny pushing Ho Ngan Chau to fall down when Ho was trying to mediate in the matter.

50.One aspect of her evidence which I have noted was that she was totally non-committal when asked about the slightest thing concerning the plaintiff.  As for instance, she neither agreed nor disputed that the plaintiff came down from the cockloft of the Fu Lai Meat Company after she had entered that shop to confront Wong.  Furthermore, she neither agreed nor disputed that the plaintiff was one of those who had persuaded Wong to put down the meat cleaver which Wong was holding when initially confronted by the 1^st defendant.

51.The only thing she was prepared to say was that her quarrel was with Wong only, and she did not quarrel with the plaintiff.  Her focus was therefore only on Wong and not on the plaintiff.  Presumably that was to highlight the fact that she did not assault the plaintiff at all.

52.In the case of the 2^nd defendant, there are several matters which seriously affected his credibility as a witness and caused me to doubt much of the evidence given by him, particularly those which conflict with the evidence of the plaintiff and his witnesses.

53.The first matter which I find incredible is his evidence that he remained looking after his meat stall and therefore did not know or see what went on inside the Fu Lai Meat Company when his mother went over to confront Wong, even though he was aware of his mother going over there and the purpose for which she went over.

54.Against that evidence of his is the evidence of the plaintiff’s witness Chan Shui Ho who said that the 2^nd defendant stood at the doorway of the Fu Lai Meat Company when the 1^st defendant confronted Wong inside at the start of this incident. 

55.I find this evidence of the 2^nd defendant incredible because if his evidence that he only joined in and wrapped his arms around the plaintiff when he thought the plaintiff was going to strike his mother is to be believed, then he was obviously concerned for her safety and would not have just stood by outside his stall and not keep an eye on his mother knowing that she was going into Wong’s stall to confront with Wong, particularly in light of the acrimonious relationship between those two females.

56.Having heard all the evidence in this case, I have come to the conclusion that it was vital for the 2^nd defendant, in putting forward his defence which was run by him, to deny all knowledge of the plaintiff being mediator between Wong and the 1^st defendant in this incident, since that knowledge cannot stand side by side with his defence run.  It was for that reason that the 2^nd defendant came up with this incredulous story that he did not see and did not know what had happened inside the Fu Lai Meat Company.

57.Whilst on this aspect, the 2^nd defendant when he was being cross examined in the Magistrate’s Court proceedings, had testified as to what had happened inside the Fu Lai Meat Company saying that the plaintiff (being the 1^st respondent in the Magistrate’s Court proceedings) had come down from the cockloft and also that the plaintiff had shouted at Wong to put down the knife. 

58.When cross-examined in this court as to how he was able to give that evidence in the Magistrate’s Court, he answered that it was his mother, the 1^st defendant who told him what had happened inside.  Yet his mother, the 1^st defendant was unable to say in her own evidence that the plaintiff had told Wong to put down the meat cleaver. 

59.From this, I am unable to believe the evidence of the 2^nd defendant that he stayed outside his own shop and did not see what had happened inside the Fu Lai Meat Company when his mother went over there to start the confrontation with Wong.

60.Rather I prefer the evidence of Chan Shui Ho on this part of the evidence that the 2^nd defendant had stayed outside the entrance of the Fu Lai Meat Company and saw what went on there when his mother was inside confronting Wong in this matter.

61.Another aspect of the 2^nd defendant’s evidence which I have serious doubts about relates to his evidence that he had agreed to be bound over in this matter without knowledge that the plaintiff did not agree to be also bound over in the Magistrate’s Court proceedings.

62.The transcript of those proceedings clearly show that the 2^nd defendant was present in the Magistrate’s Court together with the plaintiff and both of them represented by the same legal representative from the Duty Lawyer Service on 12 October 2000 at 10.24 a.m. when the 1^st defendant agreed to be bound over but that the plaintiff did not agree to be so bound over and a date was fixed by the Magistrate to hear the case of the plaintiff.

63.By agreeing to be bound over, the 2^nd defendant was accepting that he was in breach of the peace in the incident concerned, and not, as he now says in his defence, that he was merely preventing the plaintiff from assaulting his mother.

64.For the above reasons, I therefore make the following findings of facts in this matter on the disputed issues:

65.In the case of the 1^st defendant, she had assaulted the plaintiff by pulling his hair and by stepping on his right knee when he was on the ground.  She had joined in this assault on the plaintiff after she had seen her son, the 2^nd defendant struggling with the plaintiff.

66.As for the 2^nd defendant, I find that he was outside the Fu Lai Meat Company when the 1^st defendant went inside to confront Wong.  He had seen the plaintiff mediating between the 1^st defendant and Wong inside the Fu Lai Meat Company and it was largely due to that mediation by the plaintiff that Wong had put down the meat cleaver which she initially held.

67.It was when the plaintiff further intervene to physically separate the 1^st defendant and Wong outside the fish shop by stretching out his hand to prevent the two females from getting at each other, that the 2^nd defendant attacked the plaintiff from behind, locking his arm around the plaintiff’s neck from behind the plaintiff.

68.After the 2^nd defendant had put his arm round the plaintiff’s neck from behind, the plaintiff struggled to get free, in the process scratching the 2^nd defendant’s arm pit.  While the plaintiff and 2^nd defendant were struggling in that position, the 1^st defendant had come over and had pulled the plaintiff’s hair.

69.The plaintiff and 2^nd defendant then fell to the ground with the 2^nd defendant still locking the plaintiff’s neck from behind.  They fell slightly sideways with the 2^nd defendant behind and therefore a bit on top of the plaintiff.

70.It was likely that the plaintiff suffered the injury to his left knee when he fell together with the weight of the 2^nd defendant behind and slightly on top of him.

71.When they were on the ground, the 1^st defendant had again pulled the plaintiff’s hair and stepped on his right knee.

72.The matter only came to an end when there were increasing calls by the other onlookers for the 2^nd defendant to let go of the plaintiff.

Liability

73.On the facts as found by me, I do not accept the defence of the 2^nd defendant that he was only trying to prevent the plaintiff from committing a crime, namely, assaulting his mother.

74.It must have been clear to the 2^nd defendant that the plaintiff had at all times tried to mediate between the 1^st defendant and Wong. 

75.Even according to the 1^st defendant she was not aware that the plaintiff had shouted at her.  As far as the 1^st defendant was concerned, her quarrel was only with Wong.

76.Moreover, from my findings, at no time had the plaintiff raised his hand over his head in an attempt to strike the 1^st defendant.  The plaintiff had only stretched out his hand, chest high, to try to separate the two females. 

77.On the facts as found by me, even if the 2^nd defendant had genuinely thought that the plaintiff was about to strike his mother, such thinking of his was not reasonable in all the circumstances.

78.I therefore find the 2^nd defendant liable to the plaintiff for assault.

79.As for the 1^st defendant, she had joined the 1^st defendant in the assault on the plaintiff, she is therefore jointly liable with him for the consequence of that joint assault on the plaintiff.

80.Accordingly, I find both defendants liable.

Injuries and Treatment

81.After the incident, the plaintiff was taken by ambulance to the Tuen Mun Hospital Accident and Emergency Department.

82.Medical examination showed injury to the right knee and that the right knee was painful and swollen.  There was effusion of the right knee which was found to be tender on examination, especially on the lateral side.  Range of movement of the right knee was greatly diminished.

83.X-ray of the right knee revealed fracture of the right lateral plateau of the tibia.  The injury was compatible with blunt trauma.

84.The plaintiff was admitted to the Orthopaedic Ward of Tuen Mun Hospital.

85.Arthroscopy, open reduction, internal fixation and casting were done on 7 September 2000.

86.Post operatively, the plaintiff was advised to have non-weight bearing walking exercise and was discharged from hospital on 12 September 2000.

87.The plaintiff re-attended the Accident and Emergency Department of Tuen Mun Hospital on 15 September 2000 due to wound pain and was discharged after treatment.

88.The plaintiff was followed up as an outpatient.  The fracture was found to be healed on 7 February 2001.  When seen on 13 June 2001, the right knee motion was noted to be limited.

89.Sick leave was given to the plaintiff up to 3 August 2001, a total of 11 months.

90.The plaintiff was examined by Dr Lau Hoi Kuen in January 2002, some 16 months after the injury.

91.Physical examination did not reveal any serious abnormality with the right knee joint.  There was no evidence of arthritis or ligamentous instability of the joint.  The range of movement was well preserved other than a slight limitation in the full flexion of the knee.

92.There was however collapse of the lateral tibial plateau fracture resulting in angulation of the lateral compartment of the knee joint.  Osteoporotic change of the bones around the right knee shows disuse of his right lower limb since the injury.  Significant muscle wasting of the right lower limb further confirms the complaint of residual right knee pain to be genuine.

93.Dr Lau was of the opinion that there is a high chance of accelerated degenerative arthritis of the right knee as a result of the damage to the tibial side of the knee joint.  This will lead to increasing pain and stiffness in the right knee.  Total joint replacement will have to be considered, the cost of which in the private sector will be $100,000 with a further $20,000 required for rehabilitation.

94.Dr Lau further opines that the plaintiff will have to avoid heavy manual lifting.  Frequent climbing stairs and squatting is to be discouraged.  He cannot return to his work as a butcher but may take up lighter and more sedentary jobs.

95.A 4% impairment of the whole person is assessed for the injury.

Pain Suffering and Loss of Amenities

96.It is clear from the medical evidence that this case is far from being in the serious category as it is understood in Lee Ting Lam’s case.

97.A number of local awards had been cited to me in this respect by both counsel.  Those awards, using them as a guideline, show that the range of awards for this type of injury can range from between $250,000 to $400,000.

98.In my view the injury suffered by this plaintiff and also taking into account his resultant disabilities from those injuries, come well within the lower range.

99.I shall therefore make an award of $250,000 under this head.

Pre-trial Loss of Earnings

100.There is no dispute that the plaintiff worked as a butcher before this incident in which he was injured.

101.It is the plaintiff’s case that he was paid $700 per day and worked for 28 days each month.  This evidence of the plaintiff is supported by the evidence of Wong, his employer.  However, no documentary proof to show his earnings has been produced.  That is not so surprising considering the nature of the work he was involved in and the fact that he was paid cash on a daily basis.

102.On the other hand the defendants say that a butcher earns $500 a day and works for 26 days a month.

103.Having heard all the evidence, I have no hesitation in accepting the evidence of the plaintiff and Wong as to the plaintiff’s pre-accident earnings.  It translates to a monthly earnings of some $19,600 a month.

104.The plaintiff was given 11 months of sick leave by the Government doctors.  That period of sick leave has not been challenged.  Loss of earnings for that period of sick leave comes to $215,600.

105.After his sick leave expired in August 2001, the plaintiff has attempted on two occasions to return to work as a butcher, the first occasion for three days and the second occasion for a week.  However he found that he could not continue working as a butcher on both occasions.  On both these occasions he was paid $700 for each day that he did work.  Thereafter he has not attempted to find work.  His explanation was that with his limited education he would not be able to do anything else apart from being a butcher.  Even as a security guard, that would involve patrolling and climbing stairs which he could not do.

106.On that basis, it was suggested by counsel for the plaintiff that I should award partial loss of earnings for the period after the sick leave had expired.  The partial loss was to deduct from his pre-accident earnings a sum of $5,000 as being what he could earn from alternative employment suitable to the plaintiff in his condition.

107.To accede to that suggestion would be to assess his partial loss of earnings at $14,600 per month.

108.In my view to make that assessment as suggested by plaintiff’s counsel would not be reasonable given all the circumstances of this case.

109.If the plaintiff bases his case on the fact that he is skilled only as a butcher and was earning $19,600 per month as such before the accident, then one would have thought that in the restricted condition that he is in now, even accepting that he could not return fully to being a butcher earning $700 per day, he should at least be able to find work as a butcher but on a reduced capacity and perhaps, as such, taking not $700 per day but a reduced amount.

110.However, there is no such evidence before me that the plaintiff has made any attempts in this direction.  His two attempts at returning to his work were on the full capacity being paid $700 per day.

111.Bearing in mind that the plaintiff is under a duty to mitigate his damages, his failure to take such a course indicates that he has not reasonably mitigated his damages.  If such a course had been taken by him, it is possible that instead of earning $700 per day, he may only be paid a reduced amount of say $100 or $200 less per day.  In that case, his loss would not be as much as the claimed $14,600 per month.  Rather the loss would then be between $2,800 and $5,600 per month.

112.However, in the absence of any evidence from the plaintiff showing that he had mitigated his loss, I am of the view that I should make the assessment using the lower figure for such loss, which is $2,800 per month.

113.For the remaining 46 months pre-trial after the sick leave period, his loss of earnings will be assessed at $2,800 x 46 months giving $128,800.

114.Accordingly, the total pre-trial loss of earnings comes to $344,400.

115.As for loss of MPF for the pre-trial period, MPF came into force on 1 December 2001.  From that time to date is a period of 43 months.  The loss of MPF comes to 5% of $2,800 x 43 months giving $6,020.

116.Total pre-trial loss including MPF comes to $350,420.

Future Loss of Earnings

117.I will use the same multiplicand as for partial loss of pre-trial earnings.

118.As for the multiplier, the plaintiff is prepared to accept 7 as the multiplier.  The defendants have suggested 6.

119.The plaintiff is now almost but not quite 52 years old.

120.Working as a butcher may not be the most strenuous of jobs, but it is not light work either.

121.The authorities cited by the parties show that the courts have adopted multipliers of 7 or 8 for calculating future earnings in respect of plaintiff in that age bracket of 51 to 52.

122.Given all the circumstances of this case, I would adopt a multiplier of 7.  That will give an assessment of $235,200.  Loss of future MPF would be a strict 5% of that sum assessed which comes to $11,760.

Loss of Earnings Capacity

123.Admittedly with his resultant disability, the plaintiff will have some real handicap or disadvantage in the labour market if he should lose his alternative employment for any reason.

124.However that is not such a great handicap which he suffers since his injuries and disabilities are not serious.  In any event, the plaintiff is well past the prime of his working life.

125.I will assess a lump sum of $50,000 for his loss of earnings capacity.

Special Damages

126.There is a claim by the plaintiff for medical expenses in the amount of $13,500.  However, it appears that a large part of that sum claimed is made up of payments for medical reports billed by the Tuen Mun Hospital to the Legal Aid Department seeking such reports, no doubt for the preparation of this case.  As such they should properly be claimed under costs rather than as special damages.

127.I am therefore only prepared to allow a sum of $2,928 being the amount spent by the plaintiff for receiving treatment at the Tuen Mun Hospital.  That amount is calculated from a letter from the Tuen Mun Hospital to the plaintiff’s solicitors dated 22 December 2004, less the amount charged under the heading “Ophthalmology” since that was no part of the plaintiff’s injuries from this accident.

128.I shall also allow $1,000 for traveling and $1,000 for tonic food, neither of these items being supported by documentary receipts.

129.The sum of $750 for bonesetters fees have been agreed by the defendants.

130.Total of special damages therefore comes to $5,678.

Future Medical Expenses

131.There is a claim for future medical expenses of $100,000 for joint replacement of the right knee and a further $20,000 for rehabilitation after the joint replacement.

132.This is based on the medical report of Dr Lau.  The amounts suggested by Dr Lau are the costs needed in the private sector for the joint replacement and rehabilitation.

133.In view of the fact that the plaintiff has taken all his treatment to date from government hospitals, no reason has been advanced as to why he should venture into the private sector for the joint replacement, alternatively why he could not receive such treatment, when and if it becomes necessary, from the public sector.

134.In those circumstances, I am not prepared to accede to make any award under this head on the basis suggested.

Aggravated and Exemplary damages

135.In so far as this is claimed, I am not prepared to accede to any awards under this head.

136.I am of the view that the plaintiff will be adequately compensated by the awards already assessed above.

137.Moreover, there is no evidence before me coming from the plaintiff as to any loss of reputation pride or dignity suffered by him as a result of this incident.  In the absence of any direct evidence from the plaintiff of such, I do not feel it appropriate for me to second guess or infer same.

138.For these reasons, there will be no award made under this head.

Interests

139.Interests will be awarded for damages for PSLA at 2 % per annum from the date of Writ.  I make this out to be $12,917.

140.Interests on pre-trial loss of earnings and on special damages will be awarded at 4.125% (being half judgment rate) from the date of the assault.  The actual amount comes to $70,945.

Summary

142.From the above sub-total amount of $986,920 will have to be deducted the sum of $279,112 being the total amount of Employees’ Compensation already received by the plaintiff.  The final sum therefore comes to $707,808.

Conclusion

143.There will accordingly be judgment for the plaintiff against both defendants in the amount of $707,808.

Costs

144.In view of the amount which the plaintiff has succeeded in claiming from the defendants, and bearing in mind the jurisdiction of the District Court was raised from $600,000 to $1 million effective from December 2003, there will be a costs order (nisi) that the defendants pay the plaintiff his costs of this action to be taxed on the High Court scale for all such costs incurred before December 2003 but for those costs incurred thereafter on District Court scale, if not agreed.

145.The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Mr Anthony P.W. Cheung, instructed by Messrs Benjamin Au & Co., for the Plaintiff

Miss Joan Auyang, instructed by Messrs Shea & Co., for the 1st and 2nd Defendants