Chan Hau Yu v. Li Wing Kwai
Read the full judgment text of DCPI 673/2013 on BabelCite. This District Court judgment was delivered on 5 September 2014.
1. In DCPI 1883 of 2012, Madam Li Wing Kwai (“Li”) claims against Mr Chan Hau Yu (“Chan”) for damages for personal injuries caused by an assault by Chan. Chan denies liability. In DCPI 673 of 2013, Chan claims that he suffered personal injuries in the same incident due to the negligence of Li when Li opened a door bumping onto him. Li denies liability and counterclaims against Chan for the same reasons mentioned in DCPI 1883 of 2012. The two actions have been consolidated. It is obvious tha
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DCPI 673/2013 & DCPI 1883/2012 (Consolidated) IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 673 OF 2013 --------------------------
---------------------------- JUDGMENT ---------------------------- Introduction 1.In DCPI 1883 of 2012, Madam Li Wing Kwai (“Li”) claims against Mr Chan Hau Yu (“Chan”) for damages for personal injuries caused by an assault by Chan. Chan denies liability. In DCPI 673 of 2013, Chan claims that he suffered personal injuries in the same incident due to the negligence of Li when Li opened a door bumping onto him. Li denies liability and counterclaims against Chan for the same reasons mentioned in DCPI 1883 of 2012. The two actions have been consolidated. It is obvious that Chan should have filed a defence and counterclaim in DCPI 1883 of 2012, instead of starting a new action in DCPI 673 of 2013. Gist of Li’s case 2.Li and Chan operated different shops at Wing Fai Plaza, Nos. 29-35 Ting Kok Road, Tai Po (“the Plaza”). At about 1:30 pm on 26 February 2011, Li pushed open a door which accidentally hit the right shoulder of Chan. Chan did not fall down. Chan then bumped his right shoulder against Li, scolded her with foul language and assaulted her. Gist of Chan’s case 3.After Chan was hit by the door, he fell down and the tendon of his left thumb was pulled open by the door as he was holding onto the door. He had not bumped the right shoulder of Li, and he had neither used foul language against Li nor assaulted her. Main issues 4.The main issues to be decided are:-
Liability Li’s Evidence 5.On 26 February 2011, at about 1:30 pm, Li intended to leave the Plaza. Li saw a man standing outside and behind the door on the right hand side of the entrance with his back facing the door. To avoid bumping him, Li pushed open the door on the left hand side. The door was opened at “normal speed”. 6.The man, later known to be Chan, suddenly turned left at “normal speed” and the door then hit Chan on his right shoulder. Chan then rushed to Li and used his right shoulder to bump against Li’s right shoulder. Li was in pain and was scolded by Chan with foul language. 7.Li was scared and wanted to flee but Chan chased after Li and intercepted her. Chan then hit Li’s head 3 times with his right fist; once on her left forehead, once on her left cheekbone, and once on her left lip. Li’s glasses fell onto the ground during the assault. 8.Li tried to call the police but Chan used his right hand to grab her left wrist. He scolded her again in foul language and forcibly shook and pulled Li’s left wrist for a number of times. 9.Chan’s wife, a female security guard of the Plaza and another female shop keeper of the Plaza appeared and tried to stop Chan. However, Chan continued to twist and shake Li’s left hand. They then successfully separated Chan and Li. Li eventually got hold of her mobile phone and called the police. 10.Li was sent to the A&E Department of the Alice Ho Miu Ling Nethersole Hospital (“NH”) for treatment. Physical examination showed redness over her left wrist and face. 11.As a result, Chan was charged by the Police with common assault and was convicted after trial at Fanling Magistracy on 5 July 2011. Chan was sentenced to 18 days’ imprisonment. Chan’s evidence Chan’s witness statement for this trial 12.On 26 February 2011 at around 1 pm, Chan stood outside the main door on the ground floor of the Plaza. Chan was facing the street with “the door on the right hand side” behind his back. Chan then turned left and wanted to enter the Plaza. Li forcibly and deliberately pushed a door towards Chan’s right shoulder. 13.The door was translucent with tinted colour, it highly reflected light so that Chan could not see anything inside the Plaza including Li. After Chan’s shoulder was hit by the door, Chan was knocked to the ground and “his left hand hit the floor”. 14.Although the pain caused Chan’s whole body to shake, Chan stood up and entered the Plaza immediately in order to ask Li whether she hit him with intent. Chan did not scold Li with foul language. 15.Li screamed and claimed that Chan hit her. She went to her shop to get her mobile phone. After calling the police, Li returned to the place of incident and used her phone to take photographs of Chan. As Chan worried that Li would show his photographs to the public, he grabbed her mobile phone. However, he did not twist her wrist and he did not realize that he had touched her hands. In the course of grabbing her phone, her eye-glasses fell onto the floor. 16.Chan’s wife then appeared and tried to separate Chan and Li. After Chan had successfully taken Li’s mobile phone, Chan returned it to her. 17.After Chan left the police station, he returned home. Not until he took a shower did he notice that his hands were swollen. After that, he went to the hospital and he also reported to the police that his injuries were caused by Li’s assault. Nevertheless, the police refused to take further statement from Chan. 18.The hospital medical report says that Chan suffered from injury on the metacarpalphalangeal joint and ligament of his left hand. Evidence of Chan in court 19.When Chan stood outside the Plaza, the “door on the left hand side” was behind his back. Chan went outside the Plaza because he wanted to get a ticket for queuing up for tea. He stood outside the Plaza for about 1 minute. As there were too many people queuing up, he gave up getting a ticket and planned to return to the Plaza. Chan turned around and moved towards the Plaza. 20.When Chan was about to pull open the door of the Plaza, Li forcibly pushed the door towards him. Chan’s head was slightly hit but his shoulder was slammed heavily. He placed his left hand on the side of the door for support with the right hand holding onto the door handle. He slowly fell on the ground with his bottom hitting the ground. 21.Chan’s left thumb was pulled open by the door resulting in injury of the left thumb. “Both of his hands did not hit the ground”. Li did not apologize. Chan screamed to Li, “Are you going to bump me to death?”. After that, Li went back for about 20 feet and got her mobile phone from her shop. 22.Li tried to take photograph of Chan. Chan then grabbed the mobile phone from her and later returned it to Li. Chan did not hit Li. Furthermore, Chan had neither grabbed her hand nor twisted her wrist. Discussion 23.Chan was convicted of common assault at the Magistracy for assaulting Li during the incident. I bear in mind the ruling of Hon Cheung J (as he then was)in Lau Ka Po v Man Cheuk Ming(unreported, HCPI 584/1996) at page 4:-
24.Counsel for Chan invited me not to put too much weight on Chan’s conviction as he was not legally represented in the Magistracy. I bear the above in mind and also assess all the evidence independently. 25.After considering all the evidence of the witnesses, their demeanours when giving evidence and all documentary evidence, I find that Chan was an unreliable witness and his evidence about the incident was untrue. 26.Chan said in court that after the door had hit his head slightly and the door had bumped his right shoulder, he fell down. He used his left hand to hold on the edge of the glass door and his right hand to hold onto the door handle. The tendon of his left thumb was pulled open by the glass door. However, Chan had not mentioned about the tendon of the left thumb being pulled open by the glass door in the following occasions:-
27.The above together with all the evidence and Chan’s conviction make Chan’s evidence about the tendon of the left thumb being pulled open incredible. I do not accept that the tendon of his left thumb was pulled open during the incident. 28.Counsel for Chan submitted that Li’s evidence was incredible because Li said that Chan pulled her left wrist back and forth 7 to 8 times for 2 minutes but each pulling only lasted for longer than a second. Furthermore, Li said Chan shook her wrist 7 to 8 times. Each shaking could not have lasted longer than a second, so the timing did not tally. Therefore, Li’s evidence was incredible. 29.They were minor discrepancies and the timings were just rough estimations by Li. I find that they did not affect the credibility of Li. 30.Counsel for Chan has pointed out various discrepancies in Li’s evidence, pleading and witness statements, such as whether Chan used his “left” or “right” hand to grab Li’s left hand. Li explained that those discrepancies were just mistakes made by her. She then finalized her evidence as that mentioned in her supplemental witness statement. After careful consideration, I find Li’s evidence true and credible. 31.I find that Li was leaving the Plaza when Chan was standing outside the Plaza about more than 4 feet from the door on the right hand side of him. His back was facing Li. To avoid hitting Chan, Li opened the door on her left hand side, Chan suddenly turned around and moved towards the left. Chan’s right shoulder then hit the door. Chan immediately scolded Li and assaulted Li as described in Li’s evidence. Chan did not fall down after his right shoulder had bumped the door. The tendon of Chan’s left thumb had not been pulled open by the door. Any negligence on the part of Li? 32.Chan was standing more than 4 feet outside the door on Li’s right side. Li opened the door on the left hand side to avoid hitting Chan. Li has already exercised reasonable duty of care towards Chan. It was Chan who suddenly turned around and moved towards the left, so that towards the opening door. I find no negligence on the part of Li. 33.The duty of care owed by Li to other users of the Plaza (including Chan) is not an absolute one. The standard is only that of a “reasonable and prudent man”. Paragraph 8-136 of Clerk & Lindsell on Torts, 20th Edition, says:-
34.The evidence shows that apart from the abovementioned 2 doors, there was also one more door on the far left and one more door on the far right. There were altogether 4 doors in front of Li. I find that it is unreasonable to expect that Li should have used the door on the far left or the one on the far right. If Chan had not suddenly turned around to the left and moved towards the door, the accident would not have happened. 35.Chan’s evidence is that he had not suffered any injury on his right shoulder. He only suffered injury on his left thumb. I find that Chan had not fallen down during the accident. His left thumb was not pulled open by the door. Chan has failed to prove that the injury on his left thumb was related to the accident. Therefore, even if I find any negligence on the part of Li when opening the door, Chan’s claim must fail. 36.I find that Li has proved liability against Chan and I dismiss Chan’s claim against Li. Quantum for Chan’s case 37.I have ruled that Chan has failed to prove liability. For the sake of completeness, I hereby assess the quantum for damages for the injury on Chan’s left thumb as well. 38.To my surprise, there was only very flimsy evidence in Chan’s witness statement and in the trial bundles about the damages suffered by Chan. 39.Dr Lau Hoi Kuen was the single joint expert who examined Chan on 29 November 2013. His medical report dated 8 December 2013 said, inter alia:-
40.Chan refused “splintage” treatment as he preferred to treat himself with herbal medicine. Dr Lau, being a western medicine practitioner, could not comment whether it was appropriate for Chan to do so. Therefore, I make no finding against Chan in this aspect. 41.There is no sick leave certificate and Chan has neither mentioned any sick leave period in his witness statement nor in court. I shall only allow a sick leave period of 1 month. PSLA 42.In the case of Lee Tsz Kin v Climax Paper Converters Ltd, HCPI 504 of 2003, the plaintiff suffered from sprained right thumb with residual pain, and mild wasting of the muscles of the themar eminence. Exploratory operation revealed mild scarring around the nerve of the thumb. The court found that the claimant had greatly exaggerated his thumb condition. $50,000 was awarded for PSLA. 43.As the injury in this case is comparable to that in the case of Lee Tsz Kin, I assess the PSLA for Chan’s case to be $50,000. Pre-trial loss of earnings 44.Chan has produced a tax return for 2010/11 with the annual taxable profit of $176,798. I accept that his monthly income was $176,798 ÷ 12 = $14,733 at the time of the Accident. 45.As I have ruled that a sick leave period of 1 month would be allowed, the award under this head would be $14,733. Post-trial loss of earnings 46.Dr Lau said Chan could resume his pre-accident work. I shall not award any damages under this head. Loss of earning capacity 47.For the same reason, I shall not award any damages under this head. Future medical expenses 48.Dr Lau said no further medical treatment was necessary. I shall not award any damages under this head. Special damages 49.Counsel for Chan conceded that the $1,460 was for obtaining the medical report. Therefore it should be counted as disbursement, not medical expenses. There is no further claim under this head. Therefore, I shall not make any award under this head.
51.In addition to the above $64,733, there would be the usual entitlement of interest on PSLA from the date of the writ to the date of judgment at 2% per annum, and interest on pre-trial loss of earnings from the date of the accident to the date of judgment at half judgment rate. Quantum for Li’s case 52.Dr Lau Hoi Kuen (“Dr Lau”), the single joint medical expert, said, inter alia, that Li suffered the following injuries:-
53.In Chong Ngan Seng v China Harbour Engineering Co Ltd (unrep DCPI 2078 of 2009), plaintiff was travelling on board a double decker bus. In the course of the journey, a light goods vehicle cut into the lane of the bus. To avoid a collision, the Bus braked sharply and plaintiff lost her balance and was thrown into the front part of the Bus and sustained injuries to her head, shoulder and wrists. Upon examination at the A&E Department, there were bruises over her left forehead and tenderness over both hands and both writs. The diagnosis at that time was multiple contusions. After the accident, she had left shoulder pain and stiffness. X-ray taken of her left shoulder revealed decreased subacromial space, with osteoarthritic changes of inferior border of acromion and this was diagnosed to be compatible with impingement syndrome. Plaintiff received 25 physiotherapy treatment sessions, and she was given intermittent sick leaves for 6 months and 7 days. Both parties’ medical experts opined that the injuries suffered by plaintiff should be minor ones. They considered that the osteoarthritic changes as revealed by the X-ray are pre-existing and not caused by the accident. Yet, the accident caused the asymptomatic degeneration to turn into symptomatic shoulder pain after the injury. PSLA of $200,000 was awarded. 54.In Wong Chok Wai v Sun Chung Luen Chinese Products Company Limited (unrep, DCPI 1839 of 2006), plaintiff was a dried-food salesman. One of his duties was to chop preserved ham with a chopper. Plaintiff claimed that because of the chopping work, his shoulder and neck became painful. The trial judge found that plaintiff’s repeated overhead action of more than 90 degrees, according to plaintiff’s medical expert, could cause impingement syndrome. The trial judge was also satisfied that plaintiff was suffering from impingement syndrome at the time of his employment with defendant. The court also found that plaintiffwas at stage 1 or 2 of impingement syndrome, which arises typically at the age of 25-40, but could occur at any time. PSLA of $250,000 was awarded. 55.On the question of discount, Li’s pre-existing shoulder condition should fall within the second scenario among the three scenarios discussed in the Court of Appeal’s judgment in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, at p963:-
56.According to Dr Lau, although he said Li’s shoulder condition could become symptomatic at any time, he did not give any estimates when this was going to happen. Further, Dr Lau had not expressed any medical opinion on the degree of severity of Li’s pre-existing shoulder condition. 57.In Chu Chung Wah v Ng Tung Pak & Anor (unrep, HCPI 547 of 2003, 15 December 2004), Master Jeffries at paras 17 and 21 of his judgment said:-
58.I find that the PSLA before discount for Li should be $200,000. A 25 % discount should be given for the pre-existing condition. I therefore award $150,000 under this head. Aggravated Damages 59.In Mir v Mir [2012] 1 HKLRD 671, Houghton SC DHCJ at paras 88-90 said:-
60.Even though the Plaza was not crowded at that time and the assault lasted only for a short while, I find that Chan’s deliberate assault on Li in the public caused injury to Li’s pride and dignity. I award $40,000 under this head. Special damages 61.I allow all the claims for special damages except those for the physiotherapy sessions at Victor & Partners Physiotherapy Centre as they were for “back injury” which was unrelated to the incident. Therefore, I allow $10,130 under this head. The details are as follows:-
62.Li was not claiming other damages such as loss of earnings etc. 63.Summary on quantum for Li’s case:-
Interest for Li’s case 64.I order that there be interest on PSLA for Li running from the date of the writ to the date of this judgment at 2% per annum. Ialso order that there be interest on special damages from the date of the accident to the date of this judgment at half judgment rate. Costs for Li’s 65.I make an order nisithat Chan shall pay Li costs for both cases in DCPI 1883 of 2012 and DCPI 673 of 2013, with counsel certificate, to be taxed if not agreed. Judgment for DCPI 1883/2012 and DCPI 673/2013 66.Therefore, in DCPI 1883 of 2012, I award damages, interest and costs to Li against Chan as mentioned above. 67.In DCPI 673/2013, I dismiss the claim of Chan. I award costs to Li against Chan as mentioned above.
Mr Simon Ho, instructed by David YY Fung & Co, for Li Wing Kwai (the plaintiff in DCPI 1883/2012 and the defendant in DCPI 673/2013) Miss Candy Tang, instructed by Chak & Associates, for Chan Hau Yu (the plaintiff in DCPI 673/2013 and the defendant in DCPI 1883/2012) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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