SUSI YANTI & ANOTHER v. CHU SHIU-CHUEN

HCPI1176/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1176 OF 2000

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ASSESSMENT OF DAMAGES

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Introduction

1. From commencement to date, these proceedings have been singularly marked by the absence of any participation from the defendant, Chu Shiu-chuen. On 9 October 2000, interlocutory judgment was entered against the defendant in favour of both plaintiffs upon his failure to file notice of intention to defend.

2. Notice of the assessment proceedings has been duly served upon him as can be seen from the fourth affirmation of Wong Chi-wai, Dominic. The defendant can therefore not be heard to have any complaints.

3. These proceedings arose consequent upon a dog attack on the 1st and 2nd plaintiffs on 22 April 1998. The incident unfolded in a residential building at No. 29 Tai Ha Street, Tai Wo Hau in Tsuen Wan, New Territories.

4. The 1st plaintiff, an Indonesian domestic helper, was at the time running an errand on behalf of her employer. She was accompanied by the 2nd plaintiff and the 2nd plaintiff's elder sister. Whilst they were walking up the staircase in the building and were about to reach the 3rd floor, a pack of dogs, neither leashed nor muzzled, suddenly set upon them. At all material times the defendant was the owner of the dogs.

5. In consequence of the unprovoked attack, both plaintiffs sustained extensive abrasions and puncture wounds. The evidence disclosed that the 1st plaintiff had received far more bite injuries than the 2nd plaintiff who was aged 4 at the time.

6. Following the attack, both plaintiffs were sent to the Accident & Emergency Department of Yan Chai Hospital for treatment. The defendant was eventually summoned and convicted of various offences pertaining to this incident.

1st plaintiff

Pain, suffering and loss of amenities

7. Upon admission to the Yan Chai Hospital on the day of the incident, the 1st plaintiff was found to have sustained multiple abrasions and laceration wounds over both upper and lower limbs. Colour photographs taken at the time show quite serious scratch marks and puncture wounds on her limbs. More recent photographs demonstrate the existence of extensive, quite ugly scars. These scars are permanent and the plaintiff will have to live with them as best she can.

8. The wounds were treated and she was provided with analgesics and antibiotics. She also received a course of anti-rabies vaccinations with follow-up treatment at the Orthopaedics Ward of the same hospital.

9. On 7 June 1999, she consulted Dr Ian Nicholson, a plastic surgeon, who made the following observations. There were no fewer than 19 very conspicuous, darkly pigmented, raised and scattered scars of significant dimensions on the back of the 1st plaintiff's right leg. There were also multiple faint abrasions and puncture scars on that limb. On her left calf, there were 4 obvious similar unsightly scars, as well as a number of faint, scattered abrasions and puncture markings.

10. 2 noticeable raised, thickened and pigmented scars were discerned on her upper right arm, as well as faint abrasions. Dr Nicholson opined that she has permanent cosmetic disability following the attack. He further noted that plastic surgery would not ameliorate the condition. Consequently, the permanent cosmetic disability sustained by the 1st plaintiff was assessed at 5%.

11. Dr Peter Ho Pang-nin, a psychiatrist, examined the 1st plaintiff on 13 August 2000. He noted that following the attack the 1st plaintiff has become tense and worried and suffered from time to time from depressive mood. She would also occasionally cry. The 1st plaintiff related to him that she had nightmares relating to the incident. She confirmed in the witness-box that these nightmares have become less frequent, although her phobia of dogs which developed as a result of the attack has not lessened with time.

12. Dr Peter Ho also noted that the 1st plaintiff was embarrassed by the presence of the scars and has developed an inferiority complex as a result. He diagnosed that she has developed a phobia towards dogs and was suffering from post-traumatic stress disorder and inferiority complex as a result of what had befallen her. Impairment of the whole person on account of her psychiatric disability was estimated at about 8%.

13. Dr Ho also observed that this would impinge upon her earning capacity inasmuch as the 1st plaintiff would be unable to take on employment in domestic households where dogs are kept, a matter which the 1st plaintiff herself has confirmed in testimony. Psychiatric counselling and treatment for her condition has been advised.

14. Counsel for the 1st plaintiff has drawn my attention to a number of decisions. These are Lau Chi-ping v Hui Kong Ironwork Wares Godown Co. Ltd. [1998] 2 HKLR 650, Chan Pui-kee v Leung On & Another [1996] 2 HKLR 401, Tang Lo Lai-chun v Yim Ho Wai-lin [1974] HKLR 33, Thelma G Chavez v Fong Kai-yu HCPI No. 570 and 666 of 1999, and Leung Hing-sum v Yau Lee Construction Co. Ltd. & Others HCPI No. 422 of 2000.

15. Two other cases were referred to in this regard, but I do not consider them to be particularly helpful. In any event, it is patent in assessment proceedings that past awards are at best a general guide to the exercise as no two cases are similar on all material features.

16. In Thelma G Chavez, an award of $600,000 was made for PSLA. There were fracture injuries in addition to multiple scarring. It was a traffic accident. It does appear that the factual situation of that case was considerably more serious than that obtaining here. I make a similar observation in respect of Leung Hing-sum v Yau Lee Construction Co. Ltd. & Others, where a male plaintiff suffered 36% second degree burns to his face and other parts of the body. The plaintiff also suffered from post-traumatic depression requiring psychological and psychiatric intervention. $540,000 was the award for pain, suffering and loss of amenities in that case.

17. Cosmetic impairment because of the scarring would obviously have greater impact on a female victim. The 1st plaintiff's evidence was that she has avoided wearing shorts and skirts to conceal her disability. She is plainly embarrassed by her wounds. This embarrassment and the resulting inferiority complex, unless tempered by successful psychiatric help, will continue to persist.

18. I have great sympathy for her in view of the extensive scarring that can be seen from the more recent photographs. They were indeed ugly. Being a young woman, as she clearly is, she must be embarrassed for having them, as she said.

19. Taking into account all relevant matters, I consider that an award of $380,000 for pain, suffering and loss of amenities is an entirely just and appropriate award in her case. I so order.

Pre-assessment loss of earnings

20. At the time of the incident, the 1st plaintiff was aged 20, in good health and was engaged as a domestic helper, earning $3,780 per month. She was provided with free food and accommodation. It is her evidence that because of her present physical and psychiatric condition she earnestly believed that she would suffer a distinct disadvantage in the labour market. The evidence revealed essentially that if there was an impairment in this regard, it would have arisen as a result of her continuing phobia of canines.

21. She testified that she would not accept any employment in households where dogs are kept. To that extent, her employment opportunities would be reduced. Then again, there are plenty of households in Hong Kong requiring domestic helpers where no dogs feature. The plaintiff was engaged as a domestic helper and she continues to be so employed.

22. The 1st plaintiff claims that she suffered a loss of wages amounting to $1,512 on account of having to take sick leave for 12 days. I express surprise that the employer has deducted her pay when she went on sick leave. It would seem that sick leave should have been fully paid for and no loss ought to have been sustained. Be that as it may, I allow this claim of $1,512 being loss of earnings sustained in the period before assessment of damages.

Loss of earning capacity

23. The 1st plaintiff claims damages to compensate the risk of suffering longer periods of unemployment between jobs owing to her condition. The leading case in this respect is Moeliker v Reyrolle & Co. Ltd. [1977] 1 WLR 132. To successfully establish a claim for loss of earning capacity, it is incumbent upon the plaintiff to demonstrate a real and substantial risk of disadvantage in the labour market consequent upon the permanent disability sustained. As I have observed earlier, any disability, if suffered, would necessarily be linked to her continuing phobia of dogs and her desire to stay clear of any employment where dogs are kept.

24. I do not consider that the plaintiff will necessarily suffer reduced earning capacity in this case. Her counsel submits that a small sum should be given under this head of claim. He suggests a figure of between $20,000 to $30,000. The plaintiff's mobility and ability to work has in no way been impaired by her residual condition. Whilst it is true that her choice of work will somewhat be limited to the extent that she would not like to look after a family with dogs, there are ample job opportunities in the marketplace for domestic helpers.

25. I judge that a substantial and real risk required in Moeliker v Reyrolle and in subsequent cases has not been demonstrated sufficiently in the circumstances of this case to attract an award. This claim is therefore dismissed.

Future medical expenses

26. These relate to the suggested costs of psychiatric treatment that has been advised to improve the 1st plaintiff's condition.

27. A monthly expenditure of about $3,000 in this regard has been indicated. Treatment for a period of 2 years has been suggested. The claim therefore amounts to $72,000. The 1st plaintiff testified that she has begun psychiatric counselling. This head of claim is entirely reasonable and competent and I will allow it to the full amount of $72,000.

Miscellaneous special damages

28. These cover medical expenses, damaged clothing, travelling expenses and tonic food.

29. The medical expenses have been substantiated by receipts and amount to $1,768. Replacement clothing is claimed at $200, an entirely reasonable amount. Equally reasonable are travelling expenses of $500. The 1st plaintiff testified that she has incurred a sum of $5,000 for tonic foods, apparently on the advice of a friend. Such foods have been of some assistance to her, as she explained. There were no receipts. I am, however, prepared to allow this item as claimed as the quantum is reasonable and the claim is equally reasonable, in my view.

30. Under this head, damages come to ($1,768 (medical expenses) plus $200 (damaged clothing) plus $500 (travelling expenses) plus $5,000 (tonic food) ) $7,468.

31. The 1st plaintiff will have to give credit for the Employees' Compensation Award of $14,053.

Summary

32. I award the 1st plaintiff the following amounts:

(1) Pain, suffering & loss of amenities - $380,000

(2) Past loss of earnings - $1,512

(3) Miscellaneous special damages - $7,468

(4) Future medical expenses - $72,000

Subtotal: $460,980

Less EC award of $14,053

Net award: $446,927

33. The 1st plaintiff shall receive interest at 2% per annum on general damages from the date of issue of the writ to the date of assessment, and at half judgment rate on special damages from the date of the accident to the date of assessment, and thereafter at judgment rate until wholly paid.

34. I shall now address the claim of the 2nd plaintiff who sues by her mother and next friend.

2nd plaintiff

Pain, suffering and loss of amenities

35. The plaintiff was aged 4 at the time of the attack. It must have been a horrifying experience for her on any view. She noticed the 1st plaintiff being savaged and very quickly was similarly attacked by the pack of dogs. That she has suffered from occasional nightmares following the attack is wholly understandable. According to the second witness, her mother, such nightmares have become less frequent with the passing of time.

36. Formerly fond of dogs, the 2nd plaintiff has now become entirely fearful of them and this phobia has persisted, a condition which is noted on the medical evidence.

37. Upon admission to Yan Chai Hospital after the attack, this young victim was found to have 3 laceration wounds over both thighs and multiple minor bite and scratch marks over her thighs and left arm. As observed, she was clearly luckier than the 1st plaintiff as her injuries were far less serious. She was similarly treated with analgesics, dressings and antibiotics. She also received a course of anti-rabies vaccinations.

38. Dr Nicholson examined her on 7 June 1999 and noted that there was a faint pale scar over her left shoulder, a slightly noticeable pale scar on her right thigh near the knee region, a raised pale scar on the front of the left upper thigh as well as several barely perceptible bite marks and a slightly pigmented raised irregular laceration scar with 2 noticeable pairs of stitch marks on the back of her upper thigh. Dr Nicholson opined that these scars would become less significant in time but that this young patient has nonetheless sustained permanent cosmetic disability of the order of 1/4%. Plastic surgery was not indicated as visible scarring would still be evident.

39. Dr Peter Ho was consulted on 13 August 2000. His examination of the 2nd plaintiff confirmed that she had become apprehensive and tense, and fearful of dogs following her attack. He commented that her phobia towards dogs would lead to anxiety whenever she encounters such animals. This psychiatric disability has resulted in impairment of the whole person of 2%. Dr Ho advises psychiatric counselling to assist her to overcome this phobia in the future.

40. Mr Khaw urges an award in the region of $150,000. He referred to a number of cases involving children with cosmetic disabilities. These were Smith v Prendergast, Court of Appeal 16 October 1984, Matthews v Flora, Court of Appeal 15 March 1989, Orton v Brindley, Court of Appeal 21 January 1999, Che Ching-ming v Au Yeung-sang, HCA No. 5018 of 1981 and Lau Kin-lin & Another v Chan Mee-ching, HCA No. 4434 of 1984.

41. Photographs of the 2nd plaintiff's injuries show the existence of scars. I am aware and find that it would be more likely than not that as the 2nd plaintiff grows older and reaches an age when she would become interested in making herself pretty and presentable, as most young adolescent girls inevitably would, her scarring would present a degree of embarrassment to her. In view of the medical evidence, and doing the best that I can, I adjudge that an award of $130,000 is appropriate under this head. That is the sum that I order in this case.

42. The 2nd plaintiff's mother, PW2, has put in a claim for loss of wages following her taking one month no paid leave to care for the 2nd plaintiff. She claims $12,000. This claim is plainly sustainable on the authorities and established on the evidence.

Special damages

43. These comprise medical and travelling expenses, respectively $225 and $450, damaged clothing costing $200 and tonic foods amounting to $5,000. I see no reason on the evidence why all these items should not be allowed in full. They total $5,875.

Future medical expenses

44. Dr Ho has advised that psychiatric treatment over a period of 1 year would considerably assist the 2nd plaintiff. Each attendance would cost between $2,000 to $3,000. The 2nd plaintiff's mother, PW2, testified that she would want her daughter to receive such medical attention and admitted that but for the lack of funds, her daughter would have commenced psychiatric counselling and treatment. I will award this plaintiff a sum of $24,000 for prospective medical expenses.

45. Her total claim, therefore, comes to $171,875. On the award for general damages, there shall be interest at 2% from the date of the issue of the writ to the date of assessment, and at half judgment rate on special damages from the date of the accident to the date hereof, and thereafter at judgment rate until such sums are fully paid.

[Discussion on costs followed]

46. Both plaintiffs will have their costs of this assessment against the defendant taxed if not agreed. I certify suitability for the attendance of counsel in this case. There will be Legal Aid taxation of the two plaintiffs' own costs. Costs awarded to the 1st plaintiff against the defendant will be on party-and-party basis. In respect of the infant 2nd plaintiff, I am persuaded by Mr Khaw that the basis of taxation should be common fund.

47. The award in favour of the 2nd plaintiff shall be paid to her solicitors subject to the DLA's 1st charge.