CHAN YUK MEI AND OTHERS v. LAW WAI CHUEN

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff, then aged 16, was injured in an accident which occurred on 10th September 1987 at the Castle Peak Road, whilst travelling as a passenger in a vehicle owned and driven by the Defendant. The present proceedings were taken out by the Plaintiff's mother as her next friend, and interlocutory judgment for damages to be assessed was entered on 11th January 1989 on a failure to give notice of intention to defend.

2. As judgment was entered by default, the automatic directions under Order 25 Rule 8 of the Rules of the Supreme Court have no application. No directions were sought prior to the hearing of the assessment pursuant to Part IV of Order 38 of the said Rules. However, no objection was taken as to the admissibility of expert evidence. And indeed various documents, including medical reports, the subject matters of a hearsay notice, were produced in an Agreed Bundle (P.1). Only the Plaintiff (P.W.1) and her mother (P.W.2) gave oral testimony, and no medical witness was called. The Defendant called no witness, nor adduce any evidence in opposition.

3. The Statement of Claim was amended twice during the course of the hearing to put the house in order as regard the particulars of injury and loss of earnings under paragraph 7.

4. As a result of the accident, the Plaintiff lost consciousness for 4 days and was found to have suffered the following injuries:-

Owing to difficulty in breathing, a tracheostomy was performed. This was followed by putting her right leg on tibial traction with a Steinmann's pin. Subsequently an angled plate was inserted into the right hip approximating the fractured neck of the femur with a long extension of the plate into the shaft of the femur. She was able to walk with the aid of crutches 2 weeks after the operation. She also received intensive physiotherapy until discharge from hospital on 5th December 1987. She was hospitalised for a total of 87 days. After discharge she continued as an out-patient for physiotherapy and treatment to the fracture of the nasal bone.

5. She was again hospitalised on several occasions for the removal of the plate, to remove a piece of glass from the right eyelid, to improve the scars at the neck and eyelids and for treatment of inflammation to the surgical wound in the right thigh. In total she was in hospital for another 22 days. Her last stay in hospital was in August 1989.

6. As a result of the accident, the Plaintiff now suffers the following disabilities:-

(i)	extensive scarring to the scalp, face and right thigh,
(ii)	a small surgical scar at the neck,
(iii)	deformity of the nose,
(iv)	restriction in movement of right leg,
(v)	limping would occur after sitting or standing for a long time or after walking for a long distance,
(vi)	attacks of migraine and dizziness,
(vii)	sleepiness during daytime,
(viii)	bulimia bringing about obesity,
(ix)	she has changed from a sporty, active and cheerful teenager to a dull, asocial and depressed young lady with suicidal tendency, and
(x)	chronic dermatitis on the right thigh.

7. The Plaintiff further complained of difficulty in breathing brought on by congestion to the nose. But in view of Dr. Engzell's opinion that the nasal obstruction was not caused by the accident (pg.17 of P.1), and her own evidence that she used to suffer congestion to the nose on change of weather prior to the accident, I cannot be satisfied that the causal link does exist.

Pain, Suffering and Loss of Amenities

8. The Plaintiff was an active and cheerful teenager at the time of the accident. She was 16, and played, inter alia, volleyball and the organ. She had a boyfriend and led the normal sort of life one expects of a sporty teenager. She was described by her mother to be a clever and alert daughter.

9. Dr. Green, in his latest medical report dated 9th November 1990, spoke of her as having "a spatial perception problem ...... likely to be permanent and interfere with the development of skills such as driving, manipulating machinery or copying". Despite continued improvement since the accident, her ability to concentrate and apply herself for reasonable periods is still low. Indeed, from time to time during her evidence she encountered difficulty in comprehending simple questions. Her mood is unstable and describes the typical affective swings characteristic of post head-injury disability. She is still afraid of venturing out alone except in a very limited locale. She was virtually housebound for a considerable period immediately after her discharge from hospital. She is psychologically dependent on her husband and friends to go out.

10. Despite the improvements in her scars, she still harboured great unhappiness about them. She is often depressed, suffering from anxiety and irritability. Such is the intensity of such pessimism that she had become suicidal. The onset of migraine is certain to increase in severity in future, to be periodically incapacitating, and a Lifelong problem.

11. Though the Plaintiff can be said to be slightly more than medium-built prior to the accident, at 138 lbs; the bulimia (tendency to overeat) had resulted in her gaining weight to 200 lbs. The bulimia was brought on by her reaction to the cosmetic injuries.

12. Perhaps a more mature person would not have reacted in the same way the Plaintiff had towards the injuries. But I am satisfied that her reactions to the injuries are genuine. The cosmetic disfigurement to the Plaintiff, though not of the most severe kind, are devastating to a young Lady such as her. The boyfriend she was seeing prior to the accident had since disappeared. However, fortune had not foresaken her totally, and she came to know a caring male staff of the physiotherapy unit who became her husband in 1988.

13. In addition to the cosmetic disfigurement and psychological disabilities, she also suffered the physical disabilities resulting from the hip injuries as described before. Furthermore, she will have difficulties in giving birth to children. Dr. Mao was of the opinion that she suffered a total of 16% impairment of the whole person.

14. Legal Aid Counsel for the Plaintiff urged the court to award the global sum of $240,000 (i.e. instead of making a separate award for cosmetic injuries). In support, I was referred to various authorities, some of which are very helpful. An award of $60,000 was made in To Sai Wo v. Yim Wai Cheung & Anr. (SCX PI File No.4/88) in 1988 for a similar hip injury to a 29 year old man. In Li Chim Ying v. Lam Siu Cheong & Anr. (SCX PI File No.24/85), a 23 year old woman was awarded $150,000 for a similar hip injury in addition to $80,000 for scarring of the arm. She underwent less surgery than the Plaintiff and suffered only a 4% impairment of the person. Her cosmetic disfigurement was far less extensive than the Plaintiff and was confined to the arm only. In Li Soo Yee v. Ho Tak Cheung & Anr. (SCX PI File No.35/86), a 26 year old woman was awarded $160,000 for similar hip and facial injuries and a separate award of $100,000 for cosmetic impairment. She was single and suffered a 11% impairment of the person. She went through 7 months of extensive surgery. In 1988, in the case of Lee Mei See v. Kwok Chi Ming (SCX PI File No.30/88), a.26 year old woman was awarded $200,000. She had suffered very extensive knife wounds to her face resulting in substantive scarring. She also suffered psychological disturbance as a result of the attack and the scarring. A 60% impairment of the person was assessed. In the more recent case in 1989, Lam Ming Wah v. Yau Ka Fai, HCA No.A6171/86, a 26 year old married but separated woman was awarded $350,000 for extensive scarring of the face, impaired vision and psychological impairment.

15. Counsel for the Defendant submitted that the present case falls within the serious injury category of Lee Ting Nam, [1980] HKLR 657. He said as this case cannot be considered as at the top of that category, even taking into account the cosmetic and psychological impairment, the award should not exceed the maximum award of $180,000. in that category.

16. I am satisfied that the proper approach to adopt is to make a single award in the present case. I would adopt the observations I have made in Chin Po Hing v. Lo Suen, HCA No.A1434/88.

17. Having taken into account the protracted and painful medical treatments, the extensive cosmetic impairment, the physical impairment from the hip injury, the crippling psychological impairment and the resultant severe damage to her enjoyment of life and the other factors as well as the authorities set out above, I am in agreement with the Plaintiff that the sum of $240,000 would be a most reasonable and appropriate award to make in the present case. This award is also in line with the guideline set out in Lee Ting Nam, supra, as explained in Chin Po Hing, supra.

Loss of Earnings/Earning Capacity

18. The Plaintiff left school at the age of 15 whilst attending Form 2. She then joined her mother at the same factory, and had been working for about 1 year prior to the accident as a sewing machine operator. Whilst working she also continued her education at an evening school. She intended, at that time, to become a clerk at an office after passing the examinations.

19. She was earning about $2,500 per month at the time of the accident. There was a suggestion that she was planning to change over to sewing samples at a salary of $4,000 - $5,000 per month. After the accident she was on sick leave until 7th January 1988. She tried resuming her previous job in March 1988 but found it too painful in the leg to continue. She tried to find alternative jobs elsewhere. The Labour Department had advised that she is suitable only for sedentary jobs not requiring much skill or education e.g. a cashier, telephone operator or assembler. Despite great efforts, she only managed to become employed in February 1989 as a telephone operator. She worked for 4 months earning a total of $6,337.60. She then had to cease employment to be admitted to the hospital in July for the removal of the plate in her thigh. She then worked for 3 months from March to May 1990 as a cashier. She was unemployed until September 1990 when she worked for an estate agent for 2 weeks. On both occasions, she ceased employment of her own volition as a result of her physical and psychological problems. She is at present unemployed.

20. She said she should now be earning $4,000 to $5,000 per month at the factory she worked for prior to the accident but for her injuries. This was confirmed by her mother. The Plaintiff further relied on the average earning rates of a sewing machine operator compiled by the Census and Statistics Department. They are : -

21. It is to be noted that the government statistics were inclusive of fringe benefits such as meal benefits, cost-of-living allowance, good attendance bonus, night shift allowance, year-end bonus and other regular and guaranteed bonus and allowance. Based on these figures, the Plaintiff ought to be making $3,146 ($121 x 26) per month at the time of the accident. But her actual income was, according to her own evidence, only $2,500 i.e. 79.5% of the government figures. According to the government figures the monthly wages since March 1990 would be $4,446, which accords with the Plaintiff's evidence of $4,000 to $5,000 at the date of assessment. The mean difference between the government figures and her evidence between September 1987 and the date of assessment would be 89.75% (100 + 79.5 ÷ 2). I am satisfied that the Plaintiff is entitled to recover the total loss for all her periods of unemployment, and for the difference between her reduced income and her would be income based on the government figures as reduced by the said mean difference. In the premises, loss of earnings up to the day of assessment is : -

22. For post-assessment loss of earnings, the multiplier of 17 was agreed by the parties. It was submitted on behalf of the Plaintiff that the multiplicand ought to be the difference between the March 1990 government figure for a sewing machine operator and the most gainful employment the Plaintiff managed to obtain since the accident and up to the time of the assessment, i.e. as a cashier for $3,252.00 per month. I accept such to be reasonable and appropriate. This will give rise to an award of $243,576.00 (i.e. $(171 x 26 - 3,252) x 12 x 17).

23. The Plaintiff further urged the court to make an award of $75,000 for loss of earning capacity. There must be a real risk substantiated by evidence of loss of employment in future before such a claim can succeed (see Moreliker v. A. Reyrolle & Co. Ltd. [1977] 1 All ER 9 and Chan Wai Tong v. Li Ping Sum [1985] HKLR 176). I am satisfied that there exist a real risk of the Plaintiff losing her job at some future time during her working life. Indeed, she had suffered a few such occasions during the past few years. She is unemployed at the time of the assessment. An award representing a year's wages is made to cater for the handicap she suffered in the labour market i.e. inability to find a job as easily as a normal person. I award the sum of $53,352 ($171 x 26 x 12) under this head.

Medical Expenses for future operations

24. There are 2 claims made under this head. The first relates to the recommended fixed-fixed gold-bonded porcelain bridge prosthesis to replace the removable denture the Plaintiff has in place of the 2 upper teeth she lost. Dr. Bong assessed the cost at $50,000. As the present denture is causing the Plaintiff trouble in chewing sticky food, I find such a claim to be reasonable and appropriate.

25. Dr. Nicolson, in his report dated 23rd October 1990, suggested plastic surgery to her eyelid and nose. He said this could improve the eyelid scars by 60 to 70%, though noticeable scar would still be evident. Likewise the deformity to the nose could be improved, though a noticeable degree of deformity would always be evident as well. The plastic surgery carried out with a view to improve the surgical scar to her neck proved to be contra-indicated as a keloidal scar had developed. Thus, plastic surgery to the neck and ear region was not recommended. Despite the fact that the cosmetic disabilities could only be improved and that noticeable scars would still remain, I am satisfied that such plastic surgery is reasonable and her wish to have them is appropriate. The doctor's estimate of $37,000 is accepted.

Agreed Damages

26. The following heads of special damages were agreed:-

(a) (b) (c) (d)

medical expenses mother's travelling expenses Plaintiff's travelling expenses tonic food

$3,195 $1,535 $1,935 $2,160

27. Though the loss of earnings of the Plaintiff's mother was not agreed at the commencement of the hearing, the Defendant had indicated during the course of the examination in chief that no objection would be raised to such a claim. This claim is in the sum of $6,200. The total agreed is $15,025.

28. In the premises, a total sum of $757,098.47 is awarded, made up as follows:-

(1) (2) (3) (4) (5) (6)

Agreed damages Pain, suffer and loss of amenities Pre-assessment loss of earnings Post-assessment loss of earnings Loss of earning capacity Future medical expenses Total :

$15,025.00 $240,000.00 $118,145.47 $243,576.00 $53,352.00 $87,000.00 $757,098.47 ========

29. Interest will be awarded on the sum of $240,000 at the rate of 2.5% per annum from the date of writ to the date of assessment, and on the sum of $133,170.47 ($15,025.00 + $118,145.47) at the rate of 5.43% per annum from the date of the accident to the date of assessment. There will be an order nisi for costs of the assessment to the Plaintiff with certificate for counsel. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

30. Dated this 7th day of December, 1990.