Luk Sung Fei Veronica v. Chau Chung Shun and Another

HCPI 392/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 392 OF 2009

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BETWEEN

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ASSESSMENT OF DAMAGES

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CASE SUMMARY

1.This is a personal injury claim arising out of an incident occurred on 7 June 2004 (the “Incident”).

2.The plaintiff is and was at the material times a resident and an owner of a flat at Winfield Building at Yaumatei (the “Building”).

3.The 2^nd defendant was a property management company.  The Building was one of the buildings managed by the 2^nd defendant at the material times.

4.The 1^st defendant was a security guard employed by the 2^nd defendant working at the Building at the material times until about April 2006.

5.The Incident occurred on 7 June 2004.  The plaintiff’s case is that she was assaulted by the 1^st defendant at the lobby of the Building when she attempted to take photographs of the 1^st defendant as proof of the 1^st defendant’s neglect of duties while at work.  The plaintiff pleaded that the 1^st defendant assaulted her by forcibly squeezing her arms, punching his fist in her abdomen and pushing her onto the ground causing personal injuries to her.

6.As a result of the Incident, the 1^st defendant was charged with the offence of common assault.  He was bound over for 12 months in the sum of $1,000.00.

7.The plaintiff commenced her claim on 20 March 2006 in the Small Claims Tribunal.  On 18 March 2009, the Small Claims Tribunal ordered transfer of the plaintiff’s claim to the High Court.

8.On 6 May 2009, the court gave directions for the parties to file and serve pleadings.  The plaintiff filed her Statement of Claim on 3 June 2009, her Statement of Damages on 4 June 2009 and her revised Statement of Damages on 7 July 2010.  The 2^nd defendant filed its Defence on 2 July 2009. The 1^st defendant did not file any Defence.  None of the defendants filed Answer to the plaintiff’s Statement of Damages or Revised Statement of Damages.

9.Interlocutory Judgment was entered on 16 December 2010 for the plaintiff’s claim against the 1^st defendant with damages to be assessed.

10.On 20 September 2011, the court struck out the 2^nd defendant’s Defence and ordered judgment be entered against the 2^nd defendant on liability with damages to be assessed.

11.On 24 November 2011, the plaintiff issued the Notice of Appointment of Assessment of Damages (the “Assessment Notice”) returnable on 18 and 19 April 2012.

12.The Assessment Notice was served to the 2^nd defendant on 20 December 2011 by leaving the same at its registered office.  Affirmation of service was filed on 4 January 2012.

13.On 20 September 2011, when the court granted leave for the plaintiff to set down this action for assessment of damages, the court also ordered that service of that order on the 1^st defendant should be effected by placing an advertisement in a Chinese newspaper and the advertisement should show the date of the assessment hearing.  The plaintiff advertised on 23 December 2011 the said order and the assessment hearing date in a Chinese newspaper. Affirmation of Service was also filed on 4 January 2012.

14.The defendants did not file any document nor take any further step in this proceeding.  The defendants also did not attend the assessment hearing.

15.I was satisfied that notice of the assessment hearing had been duly given to the defendants.  It is the defendants’ own choices not to attend the assessment hearing.  In the premises, I proceeded with the assessment of damages in this case in the absence of the defendants.

16.On 18 May 2011, the court ordered that the expert report of Dr Wong Chung Kwong (“Dr Wong”) dated 17 May 2010 and reports on treatments to the plaintiff should be adduced at trial without oral evidence.

17.Only the plaintiff testified at the assessment hearing.

THE PLAINTIFF’S CLAIM

18.In the Revised Statement of Damages, the plaintiff claimed the following heads of damages against the defendants:

(1)  general damages for pain, suffering and loss of amenities in the sum of $500,000.00;

(2)  aggravated damages in the sum of $100,000.00;

(3)  loss of pre-trial earnings in the sum of $1,167,280.70;

(4)  loss of future earnings in the sum of $1,152,000.00;

(5)  loss of earning capacity in the sum of $100,000.00;

(6)  costs of future medical treatment and travelling expenses in the sum of $35,000.00; and

(7)  special damages for:

(a)  medical expenses in the sum of $50,000.00;

(b)  travelling expenses in the sum of $5,000.00;

(c)  expenses for tonic food in the sum of $5,000.00; and

(d)  rent from around 10 June 2004 to June 2006 in the sum of $15,793.00.

THE PLAINTIFF’S MEDICAL TREATMENTS

19.After the Incident, the plaintiff was sent to The Kwong Wah Hospital for medical treatment.  Physical examination at The Kwong Wah Hospital showed mild tenderness at lower back.  Abdominal examination was unremarkable.  X-ray of the pelvis showed no fracture and ECG was normal.  In other words, the physical injury sustained by the plaintiff in the Incident was minor.  She was discharged with analgesic and two days sick leave.

20.The plaintiff attended the Accident & Emergency Department of The Kwong Wah Hospital again on 10 June 2004 for left arm being squeezed by somebody.  She also reported anxiety after the Incident.  She was observed to be calm.  Physical examination showed mild bruising over left upper arm.  She was discharged and referred to medical social worker.

21.The plaintiff first attended the West Kowloon Psychiatric Centre on 12 September 2006 for treatment.

22.The plaintiff complained that after the Incident, she started to present with subjective lowish mood, weeping episodes, insomnia, fluctuating appetite, loss of interest/volition/energy, psychomotor retardation, negative cognitions, easy irritability and suicidal idea.

23.The plaintiff reported that she moved out from the Building after the Incident to avoid contact with the 1^st defendant until about April 2006 when the 1^st defendant ceased working at the Building. However, she complained that her depressive symptoms lingered on.  She said that she would become emotional at work and her work performance was affected. She consulted general practitioner in July 2006 and was referred to the West Kowloon Psychiatric Centre.

24.Dr Vincent Chan (“Dr Chan”) of the West Kowloon Psychiatric Centre opined that the Plaintiff had Adjustment Disorder with Reactive Depression.  He observed on 12 September 2006 that the Plaintiff was a bit lowish in mood but no active psychotic symptoms were elicited.  Her speech was relevant and coherent.  There was no expressed suicidal or violent thought.  Drugs were prescribed and counselling was offered to the plaintiff.

25.The plaintiff was seen by Dr. Chan on 28 February 2008.  Dr Chan observed that the plaintiff was not overtly anxious or depressed and no active psychotic symptoms were elicited.  Her speech was found to be relevant and coherent.  No expressed suicidal or violent thought was observed.

26.Dr Chan reported on 9 May 2008 that treatment was started and counselling was offered with gradual improvement but the plaintiff was expected to continue with follow-up in the near future.

27.Dr Chan was of the view that according to information available to him, the assault by the 1^st defendant in June 2004 was a direct and sole cause of the onset of mood symptoms in the plaintiff.

28.The plaintiff received treatment from Dr Paul Tam (“Dr Tam”) of the Union Hospital since 10 March 2008.  Dr Tam prepared a report on 1 April 2008.

29.Dr Tam reported that the plaintiff was neat and tidy in appearance.  Her speech was coherent and relevant.  She denied hallucinations and delusions.

30.The plaintiff told Dr Tam that although her mood was maintained by medications, she still experienced sleeplessness at times and had nightmares. She was also unhappy that she could not resume her church work.

31.Dr Tam observed that the plaintiff was very tense and that she was eager for legal help to seek compensation from the defendants.

32.Dr Tam opined that the plaintiff suffered from both Depression and Anxiety in 2004 after the Incident.  Her condition had improved but she had not fully recovered.  She would require follow-up consultation by a specialist psychiatrist at much closer intervals than 3 months offered by the West Kowloon Psychiatric Centre.

33.Dr Tam was of the view that to remove the plaintiff’s basic source of illness, the 2^nd defendant had to instruct the 1^st defendant not to return to the Building.

34.In his further report dated 16 May 2008, Dr Tam stated that when the plaintiff came to see him, the plaintiff was still frightened although she was taking four medications.  Her mood did improve with treatment but she still experienced poor sleep and nightmares at times.

35.Dr Tam was of the opinion that the plaintiff’s illness was caused by the Incident although he noted that his source of information was one-sided.

EVIDENCE OF MEDICAL EXPERTS

36.Dr Wong is the plaintiff’s expert and the defendants have not submitted any expert report.

37.Dr Wong examined the plaintiff on 4 May 2010 and prepared his report dated 17 May 2010.

38.The plaintiff told Dr. Wong that at the time of the Incident and afterwards, she felt shocked and very frightened.  She was unable to sleep well.  She continued to experience pain over her back and her buttocks.  She felt so frightened to see the 1^st defendant that she confined herself to her flat for a few days after the Incident until she ran out of food.  She then sought help from the Caritas Family Crisis Support Centre (the “Caritas Centre”).  The social worker at the Caritas Centre advised the plaintiff to seek psychiatric treatment but she was unable to accept the fact that she needed psychiatric treatment.

39.The plaintiff reported that after the Incident, her mood became depressed and anxious.  She also became bad tempered.  She frequently cried and was unable to control her tears.  She threw and broke things.  Her appetite became very poor and she lost a great deal of weight.  She slept poorly.  She found it difficult to fall asleep and she woke up in the middle of the night, often unable to fall back to sleep or could only sleep lightly.  She lost interests in many activities she used to enjoy.  She stopped reading books, listening to music and swimming.  She did not want to meet people.  She stopped socializing with her friends.

40.The plaintiff further reported that she suffered from weakness of both lower limbs.  She could walk only slowly and she needed to take frequent rests.  She sometimes needed to support herself with an umbrella when she walked.  She had tense feeling in her head.  She did not have headache but the fullness feeling in her head made her feel rather uncomfortable.  She sometimes had nausea but she no longer had low back pain or buttock pain.

41.She continued to be depressed.  She felt demoralized, helpless and hopeless about her future.  She lacked drive.  She found her mind muddled and her concentration poor.  She thought slowly.  She was forgetful.  She often had nightmares of people chasing her and grabbing her.  However, on the whole these symptoms had been better since a few months before she saw Dr Wong.

42.Dr Wong found that the plaintiff was in full contact with reality.  She was appropriately, tidily and cleanly dressed and combed.  Her general physical condition was fair.  She was thin, tired and frail in appearance.  She spoke slowly but her speech was coherent and relevant.  She did not suffer from any delusion or hallucination.  She did not show any psychomotor retardation or agitation.  Her expression, eye contact, gesture and posture are normal.

43.Dr Wong observed at the interview that the plaintiff’s mood was depressed.  She was angry as she talked about the 1^st defendant. She was on the verge of tears as she described the psychological pain she experienced since the Incident but her cognitive functions were not impaired.

44.Dr Wong’s diagnosis was that as a result of the Incident, the plaintiff suffered from Adjustment Disorder with Mixed Anxiety and Depressed Mood.  He opined that the Incident was the necessary cause to the disorder but he also stated that Adjustment Disorder with Mixed Anxiety and Depressed Mood was usually a highly treatable disorder if the patient was given proper psychiatric treatment.  He recommended that the plaintiff should be given sick leave on psychiatric grounds up to about six months after she had started to receive psychiatric treatment.

45.Dr Wong opined that the plaintiff suffered from a mild degree of disorder.  He assessed that the plaintiff was functioning in the upper end (i.e. wore end) of Class 2 in accordance with the Guides to the Evaluation of Permanent Impairment, 5^th edition (American Medical Association 2004).  Class 2 in the Guides means “Mild Impairment or Impairment levels are compatible with most useful functioning”.  Dr Wong’s estimate of the plaintiff’s impairment of functioning on psychiatric grounds was about 12% by reference to “The Central and Peripheral Nervous System” referred to in the Guides which assigned the range of 0 to 14% impairment to situation where there was minimal limitation in performance of activities of daily living.

46.Dr Wong was of the view that the plaintiff was able to return to her work as a preacher on psychiatric grounds but with a mild degree of compromised earning capacity and that her prognosis was fairly good provided she was given high quality psychiatric treatment.  Dr Wong was of the further view that upon receiving and completing the psychiatric treatment recommended by him, the plaintiff would suffer from a very mild impairment of functioning on psychiatric grounds or between Class 2 and Class 1 (“No impairment noted”), being closer to Class 1 than Class 2.

47.The psychiatric treatment recommended by Dr Wong was a 18 months treatment with weekly one-hour sessions in the first three months, fortnightly one-hour sessions in the second three months and monthly one-hour session for the remaining 12 months.

48.Dr Wong also pointed out that this litigation was a reminder of the Incident.  The closure of this litigation would help the plaintiff to put the tragic past behind her.

EVIDENCE OF THE PLAINTIFF

49.The plaintiff testified at the assessment hearing and called no other witness.

50.The plaintiff relied on her witness statement dated 9 April 2010 which had been adopted at the hearing as her evidence-in-chief.

51.In her witness statement, the plaintiff stated that she started to live in the Building since November 2000.  She was the owner of her flat.  The 1^st defendant started to work at the Building as security guard since mid 2003.  The 1^st defendant was employed by the 2^nd defendant.

52.Since the 1^st defendant was working at the Building, the plaintiff found that he had often neglected his duties.  She made repeated complaints to the 2^nd defendant on the work performance of the 1^st defendant without avail.

53.On 7 June 2004, when she passed the lobby of the Building, she found the 1^st defendant reading newspaper and chatting with others whilst on-duty.  She took a camera to take photographs of the 1^st defendant as evidence of his neglecting his duties.  While the plaintiff was taking photographs, the 1^st defendant approached her.  She was frightened and fled.  The 1^st defendant caught up with her and assaulted her by forcibly squeezing her arms, punching his fist in her abdomen and pushing her onto the ground causing personal injuries to her.

54.Report was made to the police.  The 1^st defendant was arrested and the plaintiff was taken to the Accident & Emergency Department of The Kwong Wah Hospital for treatments.

55.The plaintiff stated that as the 2^nd defendant still deployed the 1^st defendant to work at the Building after the Incident, she was fear for her safety and had to move out on about 10 June 2004.  She moved to stayed at the Caritas Centre for about a week.  As the Caritas Centre would only provide temporary shelter, she had to find alternative accommodation.  She rented a cubicle room at Tsuen Wan for about 3 months.  The environment there was so unhygienic that she had contracted rash.  She subsequently moved and lived in various hostels for single person until June 2006 when she returned to live in her flat in the Building after the 1^st defendant left the employment of the 2^nd defendant.

56.The plaintiff said that after she moved out from the Building, she would go back to collect letters and would come across the 1^st defendant. The 1^st defendant would show unfriendly gesture to her but he had not further attacked her.

57.The plaintiff stated that she had informed the doctor at The Kwong Wah Hospital on 10 June 2004 when she attended treatment that she felt anxious. When she stayed at the Caritas Centre, she was told by the social worker that she was depressed.  The social worker suggested her to consult psychiatrist.

58.The plaintiff stated in her witness statement that after the Incident she had nightmares of being chased by people to kill her.  She would wake up in the middle of the night and unable to fall back to sleep.  She became bad tempered and often scolded others with rude words which damaged her relationship with many friends.  Her mood became depressed.  She threw and broke things.  She lost her appetite and cried frequently.  She suffered insomnia.  She thought negatively and thought about suicide.

59.She stated that before the Incident, she did not require psychiatric treatment.  She used to enjoy reading, films, music, visiting shops, having tea, sport and swimming.  She no longer interested in these things after the Incident and ceased socializing.

60.She started receiving treatment at the West Kowloon Psychiatric Centre since 12 September 2006.  She also sought treatment from Dr Tam since March 2008.  As she could not afford the costs of treatment charged by Dr Tam, she had ceased to receive treatment from Dr Tam when she made her witness statement on 9 April 2010.

61.The plaintiff stated that she took tonic foods hoping that they could help to improve her health.

62.At trial, she said that she was prescribed with five medications and still needed to attend treatment at the West Kowloon Psychiatric Centre once every four to five months.  She had fewer nightmares after taking the medications.  She said that if she did not take the medications, she would throw things, tear books apart, scold people on the street or scream at the roof. She slept a lot but still felt tire.  She was forgetful and lack concentration.  She would read books for a few minutes and then drop them.

63.She said that she felt better now knowing that the litigation case would soon be over.

64.The plaintiff is a qualified pastor.  She had been a preacher since 1993.  She worked for various churches before she preached on her own in 1999. She had been preparing to establish her own ministry since 2001.  She would preach in China and other places of poverty.  She did not have fixed income and lived on donation from followers.

65.In her witness statement she stated that her followers would give her cash in envelope, treat her with meals and give her clothes and other gifts. She estimated in her witness statement that she received on average $16,000.00 cash donation each month.

66.At trial, the plaintiff said that her monthly expenses were about $10,000.00.  Sometimes she worked as substitution teacher and gave talks for rewards.  Other than those incomes, she was supported by her followers.

67.The plaintiff said that when she had financial needs, she would ask her friends and followers for assistance.  If the requests were reasonable, they would assist her with lump sums.

68.She said that a Teresa Lo (“Lo”) used to give her $3,000.00 each month and a Vicky Ho (“Ho”) used to make irregular payments of $500.00 each time to her.  Others like a Edward Wong (“Wong”), a Cheung Oi Ping (“Cheung”) and a Ken Fung (“Fung”) would support her when needed.

69.The plaintiff said that Lo ceased to support her since August 2004 after she had said something inappropriate embarrassed her.  She said that she had subsequently asked for assistance from Lo but Lo said that she only wanted to support ministry works and did not want to support the plaintiff’s litigation.

70.The plaintiff said that Wong had own financial problems and ceased to give her financial support but he would still sometimes invite her to meals. She recalled that the last time Wong gave her financial support was in 2003. The plaintiff said that after the Incident, Wong had arranged a job for her in 2009 or 2010 in Wong’s partnership business.  She worked there for a few months and left as she did not get any business for Wong’s firm.  She was paid about $10,000.00 per month when she was working for Wong.

71.The plaintiff recalled that Fung last gave her financial assistance in 2002.  Since Fung’s son started to attend school, she seldom contacted Fung. She had contacted Fung around the time of the Incident but Fung did not want to talk to her saying that he did not want to hear her scolding people again.

72.The plaintiff recalled that Cheung last gave her financial assistance in 2003.  After that she did not ask for assistance from Cheung.  She also did not ask for assistance from her other friends and followers since 2004 or 2005 as she felt that she was not welcomed.

73.The plaintiff recalled that she quarreled with Ho on the street in 2005 and Ho ceased to make further payment to her.

74.The plaintiff said that she had other friends and followers such as Debbie, Mrs Lam and Mrs Chu who had previously given financial support to her. Debbie used to introduce her to give talks at churches and buy her clothes and gifts.  Mrs Lam and Mrs Chu used to invite her to meals and introduce other friends to her.  However, the plaintiff seldom contacted them after the Incident as she found it difficult to explain to them the reasons for ceasing the setting up works of her ministry.

75.The plaintiff also recalled that a Mr Sun had previously supported her with $200,000.00.

76.The plaintiff said that she tried to find a job as a computer salesperson in 2010.  She was invited to a test but eventually not offered the job.  She had also applied for the jobs of invigilator and marker with the Hong Kong Examinations and Assessment Authority but was not employed.  She had applied for a teaching post last year but forgot to attend the interview.

Findings

77.Physical examination of the plaintiff on 7 June 2004 after the Incident showed mild tenderness at lower back.  No other injuries were found.  The plaintiff attended The Kwong Wah Hospital again on 10 June 2004 for left arm being squeezed by somebody.  The plaintiff’s evidence was that the 1^st defendant did not attack her further and she had no physical contact with the 1^st defendant after the Incident.  I find that the physical injuries of the plaintiff treated on 10 June 2004 were not caused by the 1^st defendant and the defendants are not liable for these physical injuries.

78.The physical injuries suffered by the plaintiff in the Incident were minor injuries.  The major complaint of the plaintiff in this case is psychiatric injuries.

79.It is stated in paragraph 2-164 of Clerk & Lindsell on Torts (20^th edition) that:

“It is not uncommon for a claimant to develop a major psychiatric condition following a relatively minor physical injury. Provided that a causal connection (medically) can be demonstrated between the physical injury and the psychiatric condition, the defendant is liable in full for the psychiatric consequences, no matter how unforeseeable.”

80.If a claimant sustained both physical and psychiatric injuries in an incident for which the defendant has been found liable, the defendant is liable for both injuries. Provided that there is a causal connection between the psychiatric injuries and the incident, no distinction needs to be made between the claimant’s initial physical injuries and his subsequent psychiatric condition.  A negligent defendant must take the victim as it finds him and must pay damages accordingly.  (See Simmons v British Steel plc [2004] UKHL 20).

81.In the medical report dated 14 March 2006 issued by Dr Tse Chui Ting (“Dr Tse”) of The Kwong Wah Hospital, Dr Tse reported that one of the reasons for the plaintiff to seek treatment on 10 June 2004 was her feeling of anxiety after the Incident.  She was found to be calm during physical examination.  The Kwong Wah Hospital referred her to medical social worker.

82.The plaintiff’s evidence was that she had no psychiatric problem before the Incident.  However, when she moved to live at the Caritas Centre a few days after the Incident, the social worker at that Centre observed that she was depressed and suggested her to consult psychiatrist.

83.The plaintiff also testified that she was so frighten after the Incident that she stayed in her flat for three days without going out.  She moved out from her own property thereafter to live in the Caritas Centre and started her life of changing accommodations for two years.

84.Taking the medical evidence and the plaintiff’s evidence together, I am satisfied that the plaintiff has proved on balance of probabilities that her psychiatric condition was caused by the Incident.

Pain, suffering and loss of amenities

85.In the Revised Statement of Damages, the plaintiff claimed $500,000.00 under this head.  Miss Lee in her submissions conceded to claim only $420,000.00.

86.Miss Lee cited the following cases to support her contention:

(1)  In Cheung Mun Yi v Tam Siu Wing and Another HCPI 809/2006, unreported, 10 July 2008 (Arjan H Sakhrani J), the claimant suffered musculotendinous strain of the left paraspinal muscle of her lower back as a result of a traffic accident and developed psychiatric illness of adjustment disorder with anxiety and depression which deteriorated to become dysthymic disorder.  This is a mood disorder characterized by depressed mood together with biological symptoms (such as insomnia, over-eating and fatigue in that claimant), cognitive symptoms (such as poor concentration, impaired thinking and judgment in that claimant) and other psychological symptoms such as low self-esteem and feelings of hopelessness.  The claimant was so depressed that she thought about jumping from height as a suicidal act.  She lost her chance of promotion and of having the contract for her pre-accident job renewed.  Her marital relationship with husband deteriorated.  She lost interest in travelling for leisure, shopping and dressing up.  She also reduced her social contacts.  Her psychiatric injuries were expected to be cured without impairment in about 5 years.  She was awarded $400,000.00 under this head.

(2)  In Yan Kwok Yue v Dong Shu KeiHCPI 923/2000, unreported, 22 January 2002 (Deputy Judge Longley) the claimant was assaulted by the defendant.  As a result, he suffered a two cm haematoma on the back of his head.  He stayed in hospital for two days.  He developed moderate to severe degree of post-traumatic disorder, post-concussional syndrome and depressive disorder.  His psychiatric treatment would have to continue indefinitely.  He had been prevented by the incident from embarking on a career as a safety supervisor to which he had devoted considerable energies.  The incident had adversely affected his relationship with his mother and resulted in him losing his long-time girlfriend.  Despite treatment, he was likely to suffer residual disabilities from the incident.  The Court awarded $500,000.00 to the claimant under this head.

(3)  In Yu Heung Yuk v Ho Man and Others HCPI 57/1998, unreported, 12 August 1999 (Deputy Judge Longley) the claimant was assaulted resulting in swelling and redness over left side of her face.  She was found to have sustained a traumatic rupture of the left eardrum.  There was bruising over the back of her left neck, left hip anteriorly and left elbow anteriorly.  An abrasion was noticed over her left hip region.  She was admitted to hospital between 11 May and 2 June 1995.  She complained that she had had a transient loss of consciousness at home.  She was diagnosed as suffering from post concussion syndrome and depressive disorder.  She had changed from being a cheerful and very energetic person into someone who was depressed, anxious, impatient and demanding.  She had made apparent attempts at suicide.  Her ability to concentrate and deal with stress was impaired.  The learned Judge was of the view that it was likely that this change in personality would be permanent and that it had and would have a significant effect on the quality of her life.  The learned Judge awarded $440,000.00 to the claimant under this head.

87.I have also considered the following cases:

(1)  In Lam Hok Fai v Chan Sai Lit and Anor HCPI No. 377/2003, unreported, 29 October 2004, Judge A Cheung (as he then was) awarded $500,000.00 under this head to the claimant who suffered head injuries at work in April 2000 with laceration over vertex and developed post-concussion syndrome which was complicated by development of major depressive disorder.  He was admitted to the psychiatric ward of Prince of Wales Hospital two years after the accident on 18 June 2001 due to deterioration of his psychiatric condition.  He was then referred to Psychiatric Day Hospital of Shatin Hospital for further rehabilitation.  He was re-admitted to the acute psychiatric ward of Shatin Hospital in October 2006 due to worsening depressive mood and suicidal ideation.  He was granted sick leave for 54.5 months and would not be able to return to the labour market until three years after trial.  He could not return to pre-accident employment.

(2)  In Chu Kwong Sang v Chuen Wo Transportation Ltd and Ors HCPI No. 296/2002, unreported, 22 December 2004, Deputy Judge Fung (as he then was) awarded $375,000.00 under this head to the claimant who suffered injuries at work with fractured left calcaneal with multiple fragments and displacement. He had to undergo open reduction, internal fixation and bone grafting operation.  He was granted sick leave for more than 14 months.  He developed depressive disorder precipitated by stress of injury and compensation.  He was still suffering from insomnia, depressed mood, poor appetite, persecutory ideas and increased irritability at the time of trial.  He also needed further surgical removal of implants to reduce irritation and discomfort.  He was unable to resume pre-accident job.

(3)  In Lin Chiu Lung v Ile Co Ltd [2006] HKCU 1301 (HCPI 1056/2002) 31 July 2006, Deputy Judge Saunders (as he then was) awarded $250,000.00 to a claimant who suffered minor fracture to right elbow in an accident.  He underwent surgery twice to relieve nerve.  He managed to recover with no residual physical impairments but subsequently suffered adjustment disorder with prolonged depressive reaction.  He was lacking in energy and drive and had a depressed and irritable mood.  He became socially isolated and could only obtained limited employment in sheltered workshop.  He still needed psychiatric treatment after the litigation case but no permanent psychiatric disability was anticipated.  The total duration of further treatment required was one year and six months.  He should be able to return to pre-accident employment.

88.The physical injuries and psychiatric injuries suffered by the claimants in the aforesaid cases were more serious than the plaintiff in this case.

89.Dr Wong recommended that the plaintiff should be given sick leave up to about six months after she had started to receive psychiatric treatment.  He stated that his recommendation was based on the fact that Adjustment Disorder with Mixed Anxiety and Depressed Mood was usually a highly treatable disorder if the patient was given proper psychiatric treatment.

90.Having regard to the aforesaid cases and the opinion of Dr Wong, I consider that an appropriate award under this head shall be $200,000.00.

Aggravated Damages

91.The plaintiff claimed $100,000.00 under this head in her Revised Statement of Damages on the ground that the plaintiff’s feelings, dignity and pride were injured by the malicious and willful conduct of the defendants. Miss Lee in her submissions claimed $30,000.00.

92.In an action for assault, the award of damages may be increased by the aggravating behaviour of the defendant which has added insult to injury.

93.In Wong Kwai Fun v Li Fung HCA 5810/1986 unreported, 28 January 1994 (Woo J [as he then was]) said at paragraph 117:

“Aggravated damages are to compensate the victim for his sufferings in his feelings, dignity and pride, for his mental discomfort and distress, and they must be justifiable on the basis of compensation.”

94.The learned author of the Butterworth’s Hong Kong Personal Injury Service commented at paragraphs 205-250 of Division II that:

“Compensatory principles require that in assessing damages for personal injury, all injury – both physical and mental – should be compensated. Where such injuries have been exacerbated by stress and anxiety resulting from the defendant’s conduct, this will be considered as part of the compensation for pain and suffering. Where, however, the plaintiff’s feelings, dignity, and pride are injured by malicious or willful conduct of the defendant, this injury can be compensated by an award of aggravated damages.”

95.The plaintiff’s evidence was that she was assaulted by the 1^st defendant at a public place, i.e. the lobby of the Building and the 1^st defendant had continued to threaten her after the Incident.  She had requested the 2^nd defendant to remove the 1^st defendant from the Building.  The 2^nd defendant had promised her to do so but took no action until after two years.  To avoid the hostile gestures and threats from the 1^st defendant, the plaintiff had to move out from her own property and to live in undesirable environment for two years.  The plaintiff’s evidence was not contradicted by any evidence from the defendants.  I accept her evidence.

96.The plaintiff’s pride and dignity as a preacher were battered.  Despite complaints from the plaintiff and promise made to the plaintiff, the 2^nd defendant took no action to remove the 1^st defendant from his working post at the Building for two years.  This had pro-longed and aggravated the injury to the plaintiff’s feelings.

97.I agree that this is an appropriate case to make an award for aggravated damages.  There are no guidelines on how to assess aggravated damages or on what is the appropriate level of award for such damages.  The award shall reflect what the court considers to be fair and reasonable compensation for the injury to the plaintiff’s feelings as a result of the defendants egregious behaviour.

98.Woolf J stated in W v Mesh and D v Mesh and another [1986] 1 All ER 935 at 942 that:

“However, so far as aggravated damages are concerned, the award must be moderate, and the primary purpose of the damages must still remain to compensate the person concerned for the injuries they have suffered, although of course the circumstances in which the injuries are suffered does affect the amount of injury they are entitled to be compensated for.”

99.I find the amount submitted by Miss Lee in the sum of $30,000.00 at the high side in the circumstances of this case.  I am of the view that an award for $20,000.00 is appropriate for this case under this head.

Pre-trial loss of earnings

100.The plaintiff clamed $1,167,280.70 under this head in her Revised Statement of Damages.  This was calculated up to 31 December 2010.

101.Miss Lee in her submissions calculated the plaintiff’s loss under this head up to 31 March 2012 at $1,173,394.00.

102.The plaintiff’s claim under this head was premised on the plaintiff’s monthly earning was $16,000.00 before the Incident.

103.In the Revised Statement of Damages filed herein on 7 July 2010, the plaintiff pleaded that as a result of the Incident and residual disabilities and complications, the plaintiff was unable to secure any gainful employment since April 2007.

104.The plaintiff produced her tax returns for the period from 1 April 2004 to 31 March 2010 which showed that she had reported the following income for the aforesaid period:

(1)  From 1 April 2004 to 31 March 2005: $50,320.00

(2)  From 1 April 2005 to 31 March 2006: $43,206.00

(3)  From 1 April 2006 to 31 March 2007: $159,590.00

(4)  From 1 April 2007 to 31 March 2008: $65,337.00

(5)  From 1 April 2008 to 31 March 2009: $654.00

(6)  From 1 April 2009 to 31 March 2010: $86,819.00

105.In contrary to what had been pleaded in the Revised Statement of Damages, the tax returns showed that the plaintiff did have employment after April 2007.

106.The first issue needs to be dealt with is how much did the Plaintiff earn before the Incident.

107.The plaintiff only adduced limited documentary evidence to prove her earnings before the Incident on 7 June 2004.  According to tax returns produced by the plaintiff, she had only earned $50,320.00 for the financial year 2004/2005.  Particulars of her earnings for this financial year were as follows:

Period	Amount	Monthly Average
1/4/2004 – 31/5/2004	$5,120.00	$2,560.00
1/4/2004 – 31/7/2004	$17,600.00	$4,400.00
1/4/2004 – 31/3/2005	$27,600.00	$2,300.00

108.Accordingly, her average monthly earnings derived from her employment for April and May 2004, i.e. the two months before the Incident, was about $9,260.00.

109.The basis for the plaintiff to claim that she had a monthly earning of $16,000.00 was that she had received assistance, free meals and free gifts from her friends who supported her missionary works.  After the Incident, she was unable to continue her missionary works because of her psychiatric condition and her friends ceased to support her.  Her case was that such support amounted to $16,000.00 per month on average.

110.Miss Lee, relying on paragraph 954 of the Hong Kong Personal Injury Service, LexisNexis Butterworth, submitted that income included wages, salary and profit.  It also included additional earnings such as tips, bonus and extra pay as well as material benefits with a pecuniary value.  Such benefits included allowances for travelling to work, free meals or food allowances and petrol allowances.  She referred to Basil Peter Barnett & another v Chan Ting-Chung [1975] HKLR 482 in which the Court took into account the claimant’s free accommodation, use of company car, travelling allowances and discount on purchase at his employer’s club in calculating the claimant’s loss of future earnings.

111.Miss Lee submitted that the work done by the plaintiff had economical value capable of quantification and there was no law against the plaintiff from claiming such loss under this head.

112.Pecuniary loss in a personal injury claim refers to the financial loss suffered by the claimant as a result of the injury.  This financial loss consists of two main elements which include: (1) the claimant’s loss of earnings or income caused by the injury; and (2) extra financial expenses caused by the injury.

113.Loss of earnings and income includes items such as loss of wages, salary, bonus and profits.  For the purpose of a head of claim in a personal injury action, it covers payments or benefits with pecuniary value received by a person for providing services to others or profits derived from a business.  In my view, they do not include ex-gratia or gratuitous payments or treatments received by a claimant.

114.The plaintiff produced no document to show the amount of payment or value of benefits received by her from her friends and supporters.  Her evidence showed that such payments and benefits were irregular and ex-gratia or gratuitous in nature.

115.The evidence of the plaintiff given at trial was that she would ask for assistances from her friends when needs arose.  Such assistances ceased for various different reasons including offended by the plaintiff’s words, not wanted to fund her litigation and own financial problems.  Some of these assistances ceased long before the Incident.  The plaintiff also stated that she did not ask others for assistance because she felt that the others no longer wanted to befriend her.

116.I find that the plaintiff fails to prove on balance of probabilities that she had received on average monthly assistance from her friends and supporters in the sum of $16,000.00 as claimed.  Her friends and supporters did from time to time provide irregular and ex-gratia or gratuitous assistances to her in cash or in kind.  However, I do not agree that such assistances shall be taken into account when the Court assesses the loss of earnings claim of a claimant in a personal injury action.  These are not damages reasonably foreseeable by the wrongdoer.

117.According to the calculation set out in paragraph 107 above, the average monthly income of the plaintiff for the remaining part of the financial year 2004/2005 after the Incident was $3,180.00 (i.e. [$4,400.00 x 2 + $2,300.00 x 10] ÷ 10).

118.Her income in subsequent financial years are as follows:

(1)  2005/2006: $43,206.00 ÷12 = $3,600.50

(2)  2006/2007: $159,590.00 ÷12 = $13,299.16

(3)  2007/2008: $65,337.00 ÷ 12 = $5,444.75

(4)  2008/2009: $654.00 ÷ 12 = $54.50

(5)  2009/2010: $86,819.00 ÷ 12 = $7,234.91

119.It can be seen that the plaintiff had had three jobs in the financial year of 2004/2005.  Two of the jobs were teaching posts.  One of them was for two months and ended on 31 May 2004.  The other was for four months and ended on 31 July 2004.  The third job was providing services to Yew Chung Education Foundation Ltd. which last until the end of that financial year.

120.Her income for the financial year 2004/2005 dropped from the pre-incident level of $9,260.00 to the post-incident level of $3,180.00 not because of the Incident but because of the temporary nature of her jobs.  No evidence was adduced to show that the two teaching posts were terminated because of the psychiatric condition of the plaintiff after the Incident.  The fact that the plaintiff’s job for providing services to Yew Chung Education Foundation Ltd. was not affected by the Incident suggested that the psychiatric condition caused by the Incident did not impact on her works. She kept similar earnings of about $3,600.00 per month for the financial year 2005/2006 and managed to earn even more in the financial year 2006/2007.  Her earnings dropped in the financial year of 2008/2009 but picked up again in the subsequent financial year of 2009/2010.

121.It is noted that the plaintiff had moved back to her property in June 2006 when the 1^st defendant no longer worked at the Building.  No evidence has been adduced to show that her psychiatric condition had worsened in the years 2008 and 2009.  In fact in Dr Chan’s report dated 6 May 2008, Dr Chan reported that: “When last seen on 28.2.2008, Madam Luk was not overtly anxious or depressed.  No active psychotic symptoms were elicited.  Speech was relevant and coherent.  There were no expressed suicidal or violent thoughts.” The plaintiff fails to prove that the decline of her earnings for the financial year 2008/2009 was caused by her psychiatric condition.

122.The evidence placed before me only shows that the earnings of the plaintiff were irregular and fluctuating due to the temporary and ad hoc nature of her jobs.  The evidence does not support the plaintiff’s contention that she had suffered loss of earnings because of the injuries or her psychiatric condition caused by the Incident.  I award no damages to the plaintiff under this head.

Future loss of earnings

123.The plaintiff claimed $1,152,000.00 under this head in the Revised Statement of Damages.

124.Miss Lee submitted that the plaintiff should be able to earn $8,000.00 per month post trial as a clerk or a saleslady after receiving proper psychiatric treatment recommended by Dr Wong.  In her submissions, Miss Lee confined the plaintiff’s claim to $864,000.00 under this head.

125.Dr Wong opined that on psychiatric grounds, the plaintiff was able to return to her work as a preacher but with a mild degree of compromised earning capacity.  Her prognosis is fairly good provided she is given high quality psychiatric treatment.  Upon receiving and completing the psychiatric treatment proposed by him, Dr Wong was of the view that the plaintiff would suffer from a very mild impairment of functioning on psychiatric ground close to the class of “no impairment noted”.

126.Miss Lee’s submission that the plaintiff could not return to her previous job of pastor or substitution teacher is contradicted by medical expert opinion adduced on the plaintiff’s behalf.

127.The plaintiff was unemployed since April 2010.  She had in her evidence said that she had tried various efforts to find employment since 2010 without success.  The fact that she was unable to secure an employment since 2010 does not necessarily mean that her unemployment was caused by the injuries suffered by her in the Incident.  Without evidence from those who declined to offer employment to the plaintiff, except the case where the plaintiff forgot to attend interview, any suggestion on the reasons for her failure to secure the job concerned is nothing more than speculation.

128.Although the Incident has caused psychiatric condition to the plaintiff and she did complain to Dr Wong about being forgetfulness after the Incident, it is too hasty to attribute her missing of the job interview to the injuries as forgetfulness does occur to normal person.  It is far-fetching to conclude that if the plaintiff did not forget to attend the interview, she would get the job.  There are simply too many uncertainties and contingencies between an interview and an offer of employment.

129.The plaintiff did not suffer actual loss of earnings after the Incident.  Further taking into consideration the aforesaid opinion of Dr Wong, I do not agree that the plaintiff will suffer loss of future earnings because of the Incident.  I also award no damages under this head.

Loss of earning capacity

130.The plaintiff claims $100,000.00 in her Revised Statement of Damages under this head.  Miss Lee submitted that the psychiatric injury had limited the plaintiff’s ability to carry out her previous job as a pastor / a substitution teacher.  She had poor concentration and memory.  She would suffer disadvantage in the labour market.

131.An award for loss of earning capacity would be appropriate if there is evidence that there is a substantial risk that the claimant will at sometime before the end of his working life lose his job and be thrown on the labour market in which he is disadvantaged.  (See Moeliker v Reyrolle & Co [1977] 1 WLR 132 (CA))

132.Browne L.J. stated inMoeliker v Reyrolle & Co at 140 that:

“This head of damage generally only arises where a plaintiff is at the time of trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job.”

133.The plaintiff was not in employment at the time of trial.  Furthermore, in view of the aforesaid opinion of Dr Wong, I do not agree that the residuary mild impairment which the plaintiff may suffer will cause material disadvantage to the plaintiff in securing employment as a pastor or substitution teacher in future.  I do not consider that this is an appropriate case for the Court to award damages under this head.

Costs of future medical treatment and travelling expenses

134.The plaintiff claimed $35,000.00 under this head in the Revised Statement of Damages.

135.Miss Lee in her submission divided the claim into $30,000.00 for future medical expenses and $5,000.00 for future travelling expenses.

136.Dr Wong recommended that the plaintiff should receive further treatment from Dr Tam as Dr Tam had established a good rapport with the plaintiff and the plaintiff had responded well to treatment by Dr Tam.

137.Dr Wong recommended that the plaintiff should receive weekly one-hour session treatment for the first three months; fortnightly one-hour session for the next three months and monthly one-hour session for the next 12 months.  In other words, Dr Wong recommended the plaintiff to receive 30 one-hour sessions treatment from Dr Tam.

138.The receipts produced by the plaintiff showed that Dr Tam charged between $1,000.00 to $1,400.00 as fee for each consultation.  I accept that allowing a sum of $30,000.00 as the plaintiff’s future medical expenses is reasonable.

139.Dr Tam’s clinic is at Tsim Sha Tsui and the plaintiff is living at Canton Road which is not far away from Dr Tam’s clinic.  In such circumstances, to claim $5,000.00 as future travelling expenses is excessive.  I allow $1,500.00.

140.I award the total sum of $31,500.00 to the plaintiff under this head.

Special Damages

141.The plaintiff claimed $75,793.00 under this head which included claims for medical expenses ($50,000.00), travelling expenses ($5,000.00), tonic food ($5,000.00) and rent ($15,793.00) in the Revised Statement of Damages.  Miss Lee in her submissions only claimed $50,000.00 as medical expenses, $3,000.00 as expenses on tonic food and $3,000.00 as travelling expenses.

142.The plaintiff’s claim for medical expenses is supported by receipts. Her claim for tonic food and travelling expenses are reasonable.  I allow them as submitted by Miss Lee.  As the plaintiff did not pursue her claim for rent, I make no award for that item.

143.The total amount of special damages allowed is $56,000.00.

Summary of Monetary Award

144.I assess that the damages payable by the defendants to the plaintiff in this Action is $307,500.00.  Particulars are as follows:

(1)  PLSA	$200,000.00
(2)  Aggravated damages	$20,000.00
(3)  Future medical expenses	$30,000.00
(4)  Future travelling expenses	$1,500.00
(5)  Special damages	$56,000.00
	Total: $307,500.00

145.I make an order nisi for the defendants to pay to the plaintiff interest at 2% per annum on the sum of $251,500.00 from date of Writ until judgment and interest at half judgment rate on the sum of $56,000.00 from the date of the Incident to judgment.

146.I also make a costs order nisi against the defendants in favour of the plaintiff for the assessment of damages proceedings including all costs previously reserved in relation to the assessment of damages.  In view of the amount of damages awarded, which is well within the jurisdiction of the District Court, the appropriate scale for the costs payable by the defendants to the plaintiff shall be the District Court scale.

147.The above orders nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.

148.As the plaintiff is legally aided, her own costs shall be taxed in accordance with the Legal Aid Regulations.

Miss Amanda W Y Lee, instructed by Messrs Robin Bridge & John Liu, for the plaintiff

The 1^st defendant in person absent

The 2^nd defendant in person absent