LAM HIP v. LEUNG KA SHING

DCPI 2230/2022 [2024] HKDC 301 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2230 OF 2022 ---------------------------------- BETWEEN LAM HIP Plaintiff and LEUNG KA SHING Defendant ---------------------------------- Coram: Master Jocelyn Leung in Court Date of Hearing: 21 February 2024 Date of Assessment of Damages: 6 March 2024 ----------------------------------------- ASSESSMENT OF DAMAGES ----------------------------------------- This is an assessment of the plaintiff’s damages in a person injury case. The plaintiff’s case is that on 22 February 2021, he was assaulted by four men including the defendant. He was punched and kicked by them and sustained multiple injuries. The plaintiff commenced this action on 7 July 2022. No notice of intention to defend had been given by the defendant. On 10 January 2023, interlocutory judgement was entered against the defendant with damages to be assessed and costs. From 26 January 2023, the plaintiff started to act in person. On 26 January 2023, statement of damages was filed by the plaintiff. He claimed for a total amount of HK$272,680.76 plus interest and costs. The breakdown of the claimed sum was: PSLA: HK$250,000.00 Pre-trial loss of earnings: HK$17,130.76 Medical expenses: HK$5,550.00 On 16 October 2023, the court set down this action for assessment of damages. On 21 November 2023, the notice of trial for the assessment of damages was issued. The notice was served on the defendant on 23 January 2024 at the defendant’s address stated on the writ. Affirmation of service was filed on 15 February 2024. The court had also on 21 November 2023 sent a notice of hearing for the assessment of damages to the defendant. The defendant did not attend the assessment hearing. I was satisfied that notice of assessment hearing had been duly given to the defendant. It was the defendant’s election not to attend the assessment hearing. I proceeded with the assessment of damages in this case in the absence of the defendant. The plaintiff’s case The plaintiff testified in the hearing. He confirmed that the defendant was convicted of one count of common assault on 5 July 2021 at West Kowloon Magistrates’ Court and was fined for HK$5,000 (WKCC 2592/2021). According to the brief facts of the criminal case, a disputed ensued between the plaintiff and the defendant at about 2215 hours of 22 February 2021. The defendant punched the plaintiff barehanded for a few seconds towards his lower ribs. Physical examination conducted by doctor in Accident and Emergency Department at Yan Chai Hospital showed mild tenderness over right lower ribs. The plaintiff adopted his witness statement filed on 17 April 2023 as his evidence in this action. He referred to his witness statement dated 23 February 2021 provided to the police. The plaintiff stated that while he was driving his motorcycle along Sha Tsui Road to provide food delivery services on 22 February 2021, the defendant with another man, who both appeared to be drunk, ran across the road without regard to the traffic light signal. The plaintiff slowed down his motorcycle and reminded them to observe the road regulation. About 5 minutes later, four men including the defendant chased after the plaintiff at Sha Tsui Road near Yuen Tun Circuit. One man hit his helmet. The defendant kicked his motorcycle. The plaintiff’s helmet and motorcycle fell off to the ground. The plaintiff fell as a result. These four men punched him and kicked him for multiple times. The plaintiff was hit at his back and left thigh. Then the plaintiff heard someone yelling “run away”. The other three men then fled, leaving the plaintiff grabbing the hands and subsequently the feet of the defendant. The other three men returned. Together with the defendant, they assaulted the plaintiff again on his head, mouth, upper body and left thigh for about 50 times. The plaintiff was hit on his right rib and felt pain. He released his hand. All four men fled towards Tai Chung Road. The plaintiff adduced 15 photographs taken by the police after the assault. Four of them captured the plaintiff’s alleged injuries, including (1) his upper lip (2) chest and shoulders (3) shoulders and (4) left knee and left thigh. He testified that he felt pain on all these areas after the assault. Injuries and Treatment The plaintiff was born in December 1990 and was aged 30 at the time of the incident. After the assault, the plaintiff was sent to the Accident and Emergency Department of Yan Chai Hospital. X ray of rib and left posterior thigh showed no fracture. He complained dizziness and also right rib pain on respiration or movement. He was discharged on the same day. However, he felt increasing pain after returned home. He therefore visited Dr Chan Tun Kut’s clinic on 25 February 2021. Computer tomography (“CT”) was conducted on the same day. It revealed that the 6th, 7th, 8th and 9th ribs of the plaintiff was fractured. Expert evidence Pursuant to the order of Master Yeung on 19 December 2022 and 2 June 2023, a medical report dated 16 July 2023 written by Dr Chan Tun Kut was filed. Dr Chan’s diagnosis was “accidental right chest wall and head injury (he was being assaulted on 22 February 2021)”. There was tenderness over his right chest wall. There was also left upper buccal mucosa ulcer due to assault. He was treated with rib belt, analgesics and physiotherapy for rib pain relief. Private CT thorax on 25 February 2021 showed 6th, 7th, 8th and 9th rib un-displaced fracture. There was no pneumothorax and no pleural effusion. He was followed up regularly from 25 February to 1 April 2021. Sick leave was granted from 25 February to 14 April 2021. During the last follow up on 1 April 2021, there was residual right chest wall pain and also dizziness. According to the plaintiff, he was a freelance athletic coach for primary and secondary schools. He ceased working as a coach due to the pandemic and therefore worked as a part-time food delivery worker at the time of the incident. He was not able to work during his sick leave. He resumed to work despite he was still in the course of recovery. He did not consult any medical practitioners since 14 April 2021. Mitigation The plaintiff said that he resumed his work despite that he was advised to receive physiotherapy and take sick leave. Factual findings The plaintiff’s testimony is not subject to any challenge as the defendant has not been present in these proceedings. The plaintiff gave evidence in a clear and straightforward manner. Despite that it was stated in the brief facts of the criminal case that the plaintiff was assaulted by the defendant barehanded for a few seconds towards his lower ribs, the plaintiff was able to further explain in the hearing that he was hit and kicked by the defendant and the other men for multiple times at different parts of his body. His evidence was also supported by the photographs. I accept his evidence. Separately, I accept Dr Chan’s evidence in the medical report. I accept that the plaintiff sustained injuries on his upper body (including his right chest), head, mouth, left knee and thigh and his back due to the assault of the defendant together with three other men. Based on these factual findings, I now turn to each hand of claim. Pain, suffering and loss of amenities (“PSLA”) The plaintiff referred to Teng Wei Yan v Kwok Kai Wai & Ors (DCPI54/2005, unreported, 26 May 2006) and contended that the plaintiff in that case had fractured ribs (5th to 8th on the left side) and PSLA was assessed at 330,000. The plaintiff contended that he sustained injuries on his head, right shoulder, contusion at left knee and fractured rib (6th to 9th) and was justified to be awarded PSLA at an amount of HK$250,000. It should be noted that the plaintiff in that case also suffered abrasion over forehead and chin, her fractured ribs with hemo-pneumothorax, and a fracture of the right clavicle. She also suffered from a ruptured spleen and pneumonia after splenectomy was performed. She was young and single, has suffered impairment as a result of scars in the abdomen, and that she suffered from residual pain around the scars, left chest wall, and right shoulder. I am of the view that Teng Wei Yan was more serious than the present case. On the other hand, the plaintiff’s claim for HK$250,000 was not challenged by the defendant. I consider that was within the reasonable range of the plaintiff’s situation. I allow HK$250,000 as PSLA in full. Pre-trial Loss of Earnings The plaintiff contends that he had to take sick leave from 22 February to 14 April 2021. His calculation of the claimed amount of HK$17,130.76 was: HK$10,077/30 X 51 days. Medical certificate dated 23 February 2021 for sick leave from 22 to 24 February 2021 issued by Yan Chai Hospital for the plaintiff suffering from assault was adduced. For the period from 25 February to 14 April 2021, certificates of sickness issued by Dr Chan of Joys Medical Centre Limited were adduced. They stated that the plaintiff suffered from injuries including right chest wall, head, right shoulder and left knee injury. The number of days of sick leave was supported by the medical certificates/certificates of sickness abovementioned. According to the salaries tax demand note 2020/2021 issued by Inland Revenue Department, the annual income of the plaintiff was HK$120,923. Such sum was divided by 12 and the monthly income of the reported income of the plaintiff was HK$10,077 (after rounded up). I am satisfied that it represented his monthly income at the material time. I accepted that the plaintiff’s calculation was accurate and allowed this item in the amount of HK$17,130.76 in full. Medical costs Official receipts issued by Joys Medical Centre Limited dated 25 February, 4 March 2021, 18 March and 1 April 2021 were admitted into evidence. They substantiated the claim for medical costs in the amount of HK$5,550. I allowed this item in full. Total Amount The plaintiff’s damages are assessed as follows: PSLA: HK$250,000.00 Special Damages: Loss of earnings: HK$17,130.76 Medical costs: HK$5,550.00 _____________ Total: HK$272,680.76 Interest Interest will be awarded at 2% per annum on damages for PSLA from the date of the writ to the date of judgment. Interest on special damages will be awarded at half the judgment rate from the date of the incident to the date of judgment. Costs I also make a costs order nisi against the defendant in favour of the plaintiff for the assessment of damages proceedings including all costs previously reserved in relation to the assessment of damages. Unless either party applies to vary the same by summons, the costs order nisi shall be made absolute 14 days from today. I have directed my clerk to inform the plaintiff if he so requests, a court interpreter can be arranged to translate this decision to him in Punti dialect in the District Court at a mutually convenient date and time. ( Jocelyn Leung ) Master of the District Court The plaintiff appeared in person The defendant was not represented and did not appear