LEE MEI SEE v. KWOK CHI MING

1987 No.A2074

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. The Plaintiff who is now 27 years of age, was working as a hostess in the Club Dai-ichi in the latter part of 1984. At that time the Defendant was a regular patron of the Club and the Plaintiff. On the 30th November 1984 there was a violent altercation between the Plaintiff and the Defendant during the course of which the Defendant severely cut the Plaintiff's face with a knife.

2. The Defendant was subsequently charged inter alia with wounding with intent contrary to S.17 of the Offences Against the Person Ordinance, Cap.212 and was upon his conviction for that offence sentenced to a period of imprisonment.

3. The writ was issued on the 10th April 1987 and interlocutory judgment in default of defence was entered on the 21st October 1987 for damages to be assessed and costs to be taxed.

4. Counsel for the Plaintiff gave notice of his intention to adduce in evidence medical and associated reports, letters relating to the Plaintiff's earnings and photographs of the Plaintiff by virtue of Section 47 Evidence Ordinance and 0.38 R.S.C.  No counter notice was served by the Defendant and accordingly the said documents were admitted.

5. At the hearing of the assessment the Defendant produced without objection by the Plaintiff's Counsel some more photographs of the Plaintiff photographs of the plaintiff's flat where the assault took place, a copy of his medical report, a copy of the judgment of H.H. Judge Rattigan delivered upon his conviction and what he described as an obscene magazine, which featured the Plaintiff prior to the assault.

6. The Plaintiff gave evidence as did the Defendant.

Pain Suffering and Loss of Amenities

7. The Plaintiff was found to have multiple knife wounds to her face, which measured 12 cm 3 cm and 3 cm respectively in addition two wounds to her right hand measuring 3 cm and 2 cm.

8. The wounds were sutured, but subsequent to her discharge from hospital the wounds became infected and required drainage of pus and re-suturing.

9. Whilst the wounds healed in due course, the Plaintiff suffered substantial facial scarring and on the 22nd January 1985 she consulted a plastic surgeon Dr. Otto Y.T. Au. She did not tell the surgeon the truth regarding the causation of the scarring but in my judgment that is of no consequence. I consider that it is pertinent to note exactly what the surgeon reported he found. The result of his examination is as follows :-

    "Right face - Two linear scars as follows :

(a) An oblique vertical scar extending from right temporal side-burn to the right cheek measures 9 cm in length, 3 mm wide and showed moderate hypertrophic in nature.

(b)Horizontal scar above the anterior portion of the mandible measures 3 cm in length 2 mm wide.

Left face - A  long curved linear scar extending from left temporal side-burn downward and forward to the masalabial area for a distance of 10 cm, it bifid upward at the anterior end for a distance of 4 cm to the nasalabial area, most of the scar is elevated and its width is 4 mm in diameter.

Chin - An oblique scar is formed at the left side of her chin. it measures 4 cm, its width is 2 mm."

12. On the 15th April 1985 Dr. Otto carried plastic surgery. It is clear from my examination of the Plaintiff's face that he did so with considerable expertise and success. However, at the end of the day he only claimed an improvement of approximately 80%, because the extent of the Plaintiff's scars was such that they occupied a significant area of her face.

13. In April 1986 the Plaintiff was examined by another plastic surgeon Dr. Ian H. Nicholson whose report was tendered in evidence. I do not propose to quote from the same in detail but will move straight to his prognosis. He considered that the Plaintiff has a permanent cosmetic disability and that whilst the scars would improve a little over the next year or so they would not improve to any significant extent. He added that further plastic surgery cannot lessen her degree of cosmetic disability. From my comparison of the photographs taken by Dr. Nicholson and my examination of the Plaintiff I observed that the Plaintiff's scars have faded a little, but in the light of his observations it is reasonable to assume that there is unlikely to be any further improvement.

14. Unfortunately the extent of the plaintiff's disabilities is not limited to her physical appearance for she became severely psychologically disturbed.

15. She attended Psychiatric Centres, mainly in Yaumatei until February 1987, but from what she said in evidence, and my observation of her demeanour in Court, that the treatment has been unsuccessful. During the course of that treatment two psychiatric reports were prepared on the Plaintiff's condition.  The first, which is no more than an inter-departmental memorandum, was written by a Dr. K.H Tan of the Yaumatei Centre on the 27th December 1985 and the second by a Dr. K. Singer on the 26th February 1987.

16. Dr. Tan briefly reviewed the Plaintiff's case history, stated that the Plaintiff was suffering from a post-traumatic stress disorder and, for what it is worth, noted that the Plaintiff's degree of disability was assessed "by our psychiatric Medical Board on 12th April 1985 in the region of 20%".

17. It is in the very nature of the human condition that many people suffer from post traumatic stress but with the effluxion of time the effects of such stress lessen or fade away altogether.  In short time is a great healer.

18. Sadly, this has not been the case in this action. In fact quite the reverse is the position as is clear from Dr. Singer's Report, in which with admirable clarity he analyses the Plaintiff's case history and advances the following opinion as to her present condition and the prognosis for her future. His opinion is that the Plaintiff is suffering from the following conditions as direct consequence of the assault.

"(1)    Port -Traumatic Stress Disorder : as shown by impairment of sleep fear of situations reminiscent of the incident and recurrent dreams of events related to it. This psychiatric disorder is a psychological reaction to acute traumatic experiences. It is severe in degree.

    She also has severe anxiety, depressive and psychosomatic (e.g. frequent urination) features associated with the Stress Disorder.

(2)    Personality Disorder (paranoid type) as shown by excessive sensitivity concerning her appearance and her scars in particular an excessive tendency to self-reference in social situations suspiciousness and a sense of subsection and humiliation. The Disorder is impairing her capacity to socialize and work. It is severe in degree.

(3)    Cosmetic Deformity as a result of the scars on her face."

19. In his prognosis Dr. Singer considered that conditions (1) and (2) may improve slightly over a period of one year but will remain severe.

20. Here, I have had the opportunity of seeing the Plaintiff and hearing her evidence. I have no hesitation in finding that there has been no improvement in the Plaintiff's condition since the report was written.

21. Dr. Singer considered that incapacity of the Plaintiff as at the date of his report was 70% and that her permanent incapacity would be 60%.

22. Hence, I have a considerable discrepancy between the reported findings of a Psychiatric Board, without any of its reasoning to hand, and that of Dr. Singer. Quite apart from the fact that I find Dr. Singer's Report cogently reasoned. It will be noted that the Board made its findings within a few months of the assault when any prognosis must have been somewhat speculative. Thus, I based on my reading of Dr. Singer's Report and my own observations of the Plaintiff I find that the Plaintiff's permanent incapacity is at least 60% and probably nearer 70%.

23. Mr. Stables for the Plaintiff submitted that Plaintiff's permanent incapacity is such that this case should come within the "substantial category of Lee Ting Lam v. Leung Kam Ming 1980 HKLR 657. He cited a number of cases in support of that submission but I found only Skelton v. State  (1978)C.L.Y. para. 728 and Liu Sul-fun and others v. Ho Wing-cheong and another 1978 No. 4713 to be of material assistance.

24. In the former case Kilner Brown J said "damage to facial appearance in an attractive young woman is devastating" and in the latter Mr. Commissioner Swaine Q.C. in respect of a plaintiff who was also a hostess quoted with approval from the 1975 edition of Kemp and Kemp on the Quantum of Damages,"  the importance of the subjective element in facial disfigurement".

25. In the present case, it is clear from Dr. Singer's Report and my own observations that the Plaintiff is devasted by the scarring to her face. She is devasted to the extent that she is quit unable to live anything approaching a normal life or earn any sort of a living, let alone return to her former job as a hostess. Here we have a young woman, who prior to the assault, was an attractive young woman about town. One may not approve of the manner in which she earned her living but according to her own lights, she enjoyed life to the full. The young woman I saw in Court was very different. She is now a virtual recluse unable even to relax let alone enjoy herself, within the security of her own home and is in her own eyes if not necessarily those of others, hideously scarred.

26. Hence, taking all the above factors into account. I agree with Mr. Stables that the Plaintiff's disablement is such that it must fall within the substantial category of the guidelines set out in Lee Ting   Lam v. Leung Kam Ming.The range of awards under this category has been revised by the Court of Appeal in Lau Che Ping v. Hoi Kong Ironmares Godown Co. Ltd. C.A. No. 12 of 1988 and accordingly under this head I award $200,000.00.

Loss of Earnings

27. The Plaintiff asserted that, but for the assault she would have worked at the Club for a few more years and then hoped to gain promotion to the exhalted rank of Mamasan. However, as she frankly admitted that only about one in ten hostesses become Mamasans I do not consider that I can base any award on that assertion.

28. The Plaintiff's difficulties under this head do not end there for in assessing a multiplcand with any degree of accuracy there must be a pattern of previous employment upon which I can base it - such a pattern is singularly lacking in this action.

29. After leaving school in about 1980 the Plaintiff worked as a sales girl and then as a factory worker. It would appear that her work as a sales girl was not particularly good because she went to work in a factory at a substantially lower wage. Eventually in August 1983 she went to work at the Club Dai-ichi as a hostess only to leave in December 1983 at the request of her boy friend. Upon leaving she worked in an office as a typist for about 9 months at a salary of $2,800.00 per month, after which she again returned to the Club Dai-ichi where she worked for 2 months prior to the assault. Her earnings from the Club were $9,300.00 per month.

30. Mr. Stables sought to persuade me that I should base the award under this head upon an amalgam of her earnings as a typist and a hostess broadly in the ratio of her earnings in each during the 12 month period prior to this head.

31. I am unpersuaded that this would be the correct approach because the two short periods of highly paid employment at the Club can scarcely form the basis of a reliable pattern of employment and, even if the Plaintiff were to resist her boy friend's blandishments and decide to remain a hostess, one cannot possibly say how long the Club would have continued to employ her.

32. On the other hand, I cannot ignore the fact that, whilst the Plaintiff had an erratic work record in so far as her place and type of employment was concerned she was an attractive and not unintelligent young woman who was in continuous employment from the time she left school to the date of the assault upon her.

33. In my judgment given this background it is reasonable to postulate that, but for this assault, she would have remained in gainful employment for the forseeable and given the clear implications of the nature of her employment at the Club Dai-ichi would be unlikely to give up work for marriage and children.

34. For the above reasons. I propose to take as a starting point the Plaintiff's earnings as a typist during the period between her periods of employment at the Club Dai-ichi. These amounted to $2,800,00 per month. I will not take into direct account her earnings at the Club Dai-ichi, but, given that she clearly had what, for want of a better phrase. I will call an "entrepreneurial flair" and outgoing personality. I will gross this figure up by 25% during the pre-assessment period. I am sure that given her personality had she remained in an office, she would have progressed reasonably rapidly within the secretarial field. This gives a figure of $3,500.00 per month which will be further grossed up by 25% to take account of wage inflation between November 1984 and the date of Assessment. Hence for the purposes of this Assessment I find her notional present earnings would be $3,500.00 + 25% i.e. $4,375.00.

35. Thus her median pre-assessment earnings amount to $2,800.00 + $4,375.00 ÷ 2 i.e. $3,587.50c per month.

36. There have been 45 whole months between the date of the assault and the date of Assessment. The pre-assessment gross loss of earnings is therefore $3,587.50c x 45 = $161,437.50c.

37. There will be a deduction of $7,560.00 in respect of her actual earnings during this period.

38. Hence under this head I award the plaintiff $153,877.50c.

Future Loss of Earnings

39. Whilst Mr. Stables suggested a multiplicand for future loss of earnings, he felt quite unable to put forward any submissions regarding an appropriate multiplier.

40. I well understand his difficulties, but, once one puts aside the Plaintiff's employment as a hostess - employment with a very uncertain future - the problem is not insoluble.

41. Presently from my reading of the psychiatrists' reports and my observation of the Plaintiff in Court, I consider that it is highly unlikely that the Plaintiff will ever work again. However, at the risk of being over-cautious, I am not prepared to simply apply the maximum multiplier. I say this because the Plaintiff is 27 years of age and it is possible, albeit unlikely, that with advancing years the Plaintiff will become less conscious of her disfigurement and will feel able to re-enter the job-market. In these circumstances, whilst accepting there is a degree of arbitrariness in the finding I consider that the appropriate multiplier should be 10.

42. I have already found that the Plaintiff's notional present earnings are $4,375.00. Thus, under this head I award the Plaintiff $4,375.00 x 12 x 10, i.e. $525,000.00.

Special Damages

43. The special damages claimed by the Plaintiff in so far as they relate to medical and travelling expenses, were not disputed by the Defendant. They will be allowed in so far as they are set out in the Plaintiff's notice pursuant to the Practice Direction dated 29th November 1984 and are as follows:-

44. Before concluding this assessment there one further matter which I consider I must address.

45. Until the hearing of this Assessment the Defendant has adopted an entirely passive role, but he made it clear in his evidence that he considers that he is more a victim then the Plaintiff. He did not say so in terms, but by implication he was saying that as the Plaintiff was largely the author of her own misfortune and accordingly the damages awarded to her should be reduced. As the Defendant was unrepresented I feel obliged to consider this point, notwithstanding the dearth of pleadings to that effect. In my judgment, one only has to look at the respective injuries of the Plaintiff and Defendant to see the lack of merit in that submission. The Plaintiff was very severely wounded whereas the Defendant suffered and few bruises and a minor abrasion on his finger. In short the Plaintiff's injuries are consistent with her being the victim of a frenzied attack with a knife and the Defendant's injuries are consistent with the Plaintiff putting up a defence to that attack. Hence, I reject the Defendant's submission on this point.

46. In summary therefore the awards are as follows :-

47. There will be interest on the award for pain, suffering and loss of amenities at the rate of 2% per annum from the date of the writ to the date of assessment and on the awards for loss of past earnings and special damages at the rate of 3 1/16% per annum from the date of the assault to the date of the assessment.

48. I will hear the parties on costs.