HO WAI-YEE v. YIP CHUEN AND ANOTHER

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JUDGMENT

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ASSESSMENT OF DAMAGES

1. On the afternoon of 14 September 1994, the plaintiff was making her way across Nathan Road on foot with a number of other pedestrians.

2. As this is a wide roadway, she was obliged to remain on the traffic island in the middle of the road until her pedestrian lights had turned green. It had been raining that day. Suddenly, and without warning, a public light bus, owned by the 1st defendant and driven by the 2nd defendant, went out of control, mounted the traffic island and struck the plaintiff from behind. She was knocked unconscious and woke up in the Accident and Emergency Department of Queen Elizabeth Hospital.

3. The plaintiff was and is a laboratory technician, employed by the Hong Kong Government in the Department of Health. As a result of this accident she spent a total of five weeks in hospital as an in-patient, and has had to make a great number of follow-up visits to hospitals and clinics for treatment and physiotherapy. Fortunately, there has been no loss of earnings from her main source of employment, although there was a small claim for loss earnings in a part-time job which has been agreed.

4. On 26 August 1998, judgment by consent was entered for the plaintiff against both defendants on liability with damages to be assessed.

5. The plaintiff was born on 18 March 1970 and was 24 and single at the time of this accident. She married last year and is now 29 years old. Upon admission to hospital she required emergency treatment for life threatening internal injuries. Her abdomen was opened to reveal massive internal bleeding and a ruptured spleen. It became necessary to remove her spleen.

6. The plaintiff's scalp was found to have a 3 x 5 centimetre defect over the right temporal region with implanted dirt requiring debridement (in her own words, "Part of my hair and scalp were pulled out to the size of an egg, leaving the bone exposed"). She also had less serious skin tissue damage to her left chest, left elbow, right thumb and wrist, as well as her left foot.

7. X-ray examination revealed fractures to the plaintiff's ninth and tenth ribs, as well as a comminuted fracture of her left shoulder blade.

8. The plaintiff was discharged from hospital on 9 October, but then re-admitted on the 29th of that month for an operation to transfer a large flap of skin and hair from the back of her scalp to the site of the defect at her right temple area. She was finally discharged on 8 November 1994 wearing an elbow sling for her shoulder injury for about one month.

9. Thereafter, the plaintiff was obliged to attend for regular follow-up treatment, including physiotherapy involving deep breathing to ensure that her lungs would recover fully. Her scar tissue was injected with steroids in an attempt to improve its appearance, and she herself would regularly apply silicon gel with limited success. She also underwent pressure garment therapy to address the appearance of the scars. In particular, she wore an elasticated T-shirt under her normal clothing which was necessarily very tight and which she was obliged to wash every 24 hours. She also wore an elasticated glove on her right-hand as well as a wrap-around tube on her left elbow, made up of the same material. All three pressure garments were worn 24 hours a day for three years, she told us. She felt obliged to wear clothing that covered such unusual apparel during this period.

10. So as a result of this accident the plaintiff suffered three types of injury:

11. Undoubtedly, her first few months after final release from hospital would have been an ordeal as rib injuries are known to be extremely painful and her body had to adjust to the removal of its spleen which the body uses as part of its immune system. The plaintiff was also undergoing the intensive and partially successful scar tissue treatment already described.

12. Thankfully, the bone fractures healed completely within a few months. The removal of her spleen has caused the plaintiff distress and discomfort, insofar as she has been far more prone to cold symptoms and she has suffered diarrhoea far more often since the accident.

13. The medical report of Dr TONG Kar-lun, dated 6 May 1998, and admitted into evidence by way of a hearsay notice, makes reference to her "complaints of frequent diarrhoea recently". However, he does not trouble himself to comment any further.

14. There is indeed no medical evidence before me on the long-term consequences of a spleen removal, and so I cannot consider any possible future symptoms under this heading. However, it has not been seriously challenged in cross-examination that this interference with the plaintiff's immune system has given rise to complaints of "more colds and diarrhoea than normal", and I found that as a witness the plaintiff was not prone to exaggerate her symptoms. So I will bear those pre-trial complaints of discomfort in mind when assessing damages.

15. Finally, there is the question of the scars, so well set out in the agreed medical report of the plaintiff's surgeon, Dr Gordon MA, dated 7 January 1997. Each wound is illustrated by a photograph and the doctor's comments, and we have also had the benefit of seeing some of the scars in court with the plaintiff's consent. Taking the scars in the same order as in Dr MA's report, together with the plaintiff's own comments, I find as follows:

16. Dr. MA assesses the plaintiff's scars as "permanent, unsightly scars with a cosmetic disability of 8 per cent". I was surprised at such a low figure, bearing in mind the plaintiff's appearance, until counsel informed me that this is based upon an American scale which starts at 100 per cent for third degree burns over the total surface of the body.

17. Mr Giblin, for the defence, has taken the court through the case law and, in particular, the leading case of KAN Kit-yuk v CHEUNG Kwok-chuen [1995] No. PI536, where Cheung J reviewed previous decisions in order to update the guideline awards. These guidelines attempted to place injuries into the four categories that have been used in Hong Kong since LEE Ting-lam's case [1980] HKLR 657, that is, the categories of "serious injury, substantial injury, gross disability and disaster". However, as Cheung J points out, the guidelines concentrate on the physical and functional disabilities that inevitably lead to loss of earnings. As was said by Nolan LJ in the case of Orton v Brindley (Kemp and Kemp on Damages, C5/028):

"Not much assistance can be derived from reported decisions in cases of scarring. To an unusual extent the proper assessment of the damages in such cases must depend upon the view taken by the judge of the scarring on the particular child".

18. Mr Giblin has urged me to place the plaintiff's case below the serious injury category. As the Court of Appeal has stated, however, the guidelines are intended to be flexibly applied. Although the plaintiff has no functional disabilities, it cannot be denied that her injuries had a profound impact on her life. She suffered pain, discomfort and inconvenience for at least three years after the accident and will continue to suffer the indignity and embarrassment of the scars for the rest of her life. In short, she can never look herself full in the mirror without being reminded of this accident. The quality of her life has been noticeably impaired and this must place her close to the "serious injury" category.

19. I find an appropriate award for pain, suffering and loss of amenities to be in the sum of $450,000. The Special Damages have already been agreed as follows:

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20. Accordingly, I award the plaintiff the total sum of $510,334 plus interest plus costs.

21. The total award is as follows:-

22. I certify for counsel and order that the plaintiff's own costs be taxed in accordance with the Legal Aid regulations.