CHAN TSZ SING v. LO CHING PONG AND ANOTHER

CACV 176/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO.176 OF 2004

(ON APPEAL FROM DCPI NO.430 OF 2003)

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J U D G M E N T

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Hon Stone J :

The appeal

1. This is an appeal from a personal injuries judgment of His Honour Judge Wesley Wong handed down on 27 February 2004.

2. The plaintiff, the appellant herein, sustained minor injuries to his face in a traffic accident on 27 November 2000.  The plaintiff was a front seat passenger in a car owned by the 2^nd defendant which was driven by the 1^st defendant into the rear of a public light bus.  Liability was conceded.

The injuries suffered

3. At the time of the accident the plaintiff was a young man of 23.  Fortunately the injuries he suffered were relatively minor.

4. In summary, he suffered multiple abrasions and lacerations on the forehead and eyebrow.  The treatment was surgical toilet and suturing under local anaesthesia.  The plaintiff discharged himself from hospital on the same day, and was given five days sick leave.

5. There is no functional disability, and the plaintiff’s residual injuries are wholly cosmetic.  There were multiple abrasion scars on the forehead which are irregular in contour but there was no hypertrophy or contracture.  In addition there was a scar measuring 5 x 25mm immediately under the right eyebrow which was obvious, with irregular surface and margin, elevated and more pigmented than the adjacent skin.

6. Other scars in the left eyebag region and on the nose are mentioned, but these appear to have pre-dated the accident.

7. Glass particles were implanted in the plaintiff’s forehead by the impact, and these were surgically removed.  An invoice dated 23 December 2002 from Dr Chow Sik Kuen, a plastic surgeon, has been produced regarding the consultations and the surgical removal in question: this in the sum of HK$36,600.00.

8. The plaintiff’s cosmetic impairment was assessed at 5% by the defendants’ doctor.

The awards by the judge below

9. In a crisp judgment the learned judge below carefully considered the extent of the injuries and their alleged consequences, and made awards under the following heads :

PSLA	–	$30,000
Loss of earnings pre-trial	–	7,000
Loss of earning capacity	–	Nil
Tonic food	–	Nil
Medical Expenses	–	36,668
Future medical expenses	–	100
Total	–	$73,768

10. With this adjudication the plaintiff is dissatisfied.  Hence this appeal.

The argument

11. As is customary, counsel on both sides filed helpful skeleton arguments.

12. Mr Sham for the defendant naturally wished to hang his hat upon what, from the insurer’s viewpoint, was undoubtedly an highly favourable assessment.

13. To the contrary, Mr Lam for the plaintiff maintained that the damages assessment was far too low, and suggested some significantly enhanced figures to the court.

14. In summary, Mr Lam sought an award for PSLA in the region of $200-250,000, a sum for past loss of earnings in the amount of $177,000, a figure for loss of earning capacity of $78,000, the sum of $62,000 for future medical expenses, and the amount of $5,000 for tonic food, these sums thus indicating, on his argument at least, a total sum in damages of something in excess of $500,000.

Decision

15. For my own part I agree with neither approach.

16. In my view the figures postulated by Mr Lam are totally out of proportion to the magnitude of the injuries suffered by this plaintiff.  On the other hand, there is no doubt that, with respect, the learned judge below has been rather too parsimonious in his award.  Possibly his outlook was affected by his fairly evident opinion that this plaintiff was making rather too much of his misfortune, particularly in his claim for alleged earnings loss attributed to the accident.

17. Be that as it may.  It is clear that the existing award cannot be allowed to stand in its present form, and must be subject to some variation.

18. I take each of the heads in turn.

PLSA

19. A number of cases involving scarring have been cited to us by counsel on each side.

20. I see no reason to elaborate upon them in this judgment, since it is clear that none of these cases is really of any assistance given the disparity in the gravity of the injuries.

21. On general principle, however, in my view the learned judge erred in attributing a figure of but $30,000 to someone whose face has been scarred, who has had the pain and discomfort of surgery for particle removal, and who faces the prospect of laser dermabrasion to minimize the sight and effect of the scars thus caused.

22. I bear in mind, of course, that this is far from a serious case, and indeed the photographs demonstrate that thankfully this young man’s good looks have not been greatly affected.

23. However, even after taking this into account, the sum awarded below strikes me as being almost cavalier.  Indeed, in the case wherein there has been facial damage of any significance in terms of residual scarring, I should have thought that there must be an irreducible minimum below which it is not appropriate to pitch any award, and for my part I consider that $30,000 is simply insufficient.

24. Absent any guide from the case law this instance is very much a matter of instinctive feel, and after some reflection, I would award the sum of $70,000 under this head.

Loss of earnings/ loss of earning capacity

25. The learned judge took the view that the earnings loss claimed by this plaintiff was “grossly exaggerated”.

26. It is clear that he carefully reviewed the evidence, and was “convinced’ that the plaintiff was in a position to work shortly after the accident.  He concluded that “if it was true that he did not work it was self-induced”, and that there was no psychiatric evidence to assert that he suffered from a consequent mental disability.

27. Against the backdrop of such a strong factual finding by the seeing and hearing judge this court should be cautious indeed before it permits itself to come to a different conclusion, and for my part there is nothing in the papers to convince me to seek to alter the finding of the learned judge either in terms of loss of earnings or in terms of loss of earning capacity — as to which the judge held, correctly in my view, that there was no residual disability in this case which arose from the accident which prevented the plaintiff from doing any sort of job.

28. Accordingly, in my judgment the finding of pre-trial loss of earnings in the sum of $7,000 should not be subject to variation, and nor should the judge’s refusal to make any award for future loss of earnings or loss of earning capacity.

Medical expenses

29. A hospital charge of $68 was admitted at trial, and the learned judge awarded in full the sum of $36,600, which was the amount of the fee of Dr Chow Sik Kuen, whose invoice was dated 23 December 2002.

30. The sole debate in this context focused on the sum of $62,000, which was claimed by the plaintiff for laser dermabrasion of the scar on the forehead.

31. The judge below rejected this, concluding that this treatment could be achieved in the plastic surgery unit of a government hospital; in the event the sum of $100 was allowed for future medical expenses.

32. In my view the cost of laser dermabrasion at a private clinic constitutes a legitimate claim, and in the circumstances should not have been thus brushed aside.  The only valid question which arises is the actual cost of this procedure.

33. In this context our attention has been drawn by Mr Sham for the defendants to the fact that, although the sum of $62,000 is claimed for such laser treatment, in terms of the costs breakdown contained in the report of Dr Chow Sik Chuen only the sum of $28,000 is allowed for this item.

34. At the same time Mr Sham further noted that three items within this same costs breakdown covered treatment of pre-existing scars, and thus contended that these items should not be allowed, and he further observed that the overall cost of follow up consultations made no differentiation between treatment for the accident injuries and that for the pre-existing scars.  Mr Sham also pointed out that the same costs breakdown included the cost of the treatment for the removal of the glass particles, which cost already had been allowed by the learned judge pursuant to Dr Chow’s December 2002 invoice.

35. Mr Lam for the plaintiff attempted to assist the court on the significant disparity in terms of the laser dermabrasion cost, but ultimately had to admit defeat and contented himself with the argument that since issue had not been taken in the pleadings with the larger amount, then such should be allowed, a suggestion which struck me as being both facile and incorrect.

36. In the event, as both counsel agreed, the most efficacious way of proceeding in terms of medical costs, be they past or future, was to take as the primary reference point the costs breakdown as detailed by Dr Chow in his expert report, amounting in total to $94,000, there being included within this breakdown, as earlier noted, a total of $28,000 for the cost of laser dermabrasion treatment.

37. Of the costs thus outlined by Dr Chow the sum of $36,600 already has been allowed by the judge below as per Dr Chow’s 23 December 2002 invoice which had been paid (in fact, the two items dealing with the removal of the foreign bodies within this costs breakdown actually amounted to a little less, namely $32,000, although for present purposes I will work on the basis of the invoice sum actually paid), whilst clearly no allowance is to be made for three sums, totalling $13,000, which is attributed to the treatment of the pre-existing scars, and must thus be disallowed. In addition there requires to be some adjustment to the sum for follow-up consultations to reflect the fact that all the consultations would not be with reference to the accident injuries.  In this latter instance, doing the best that I can, out of an estimate of $21,000 I disallow the sum of $7,000, leaving a balance of $14,000.00.

38. Given this methodology, the mathematics produces the net figure for medical expenses, both past and future, at $78,668.00 ($36,668 + $28,000 + $14,000.00).

Tonic food

39. Mr Sham had the great good sense not to take issue with the figure of $5,000 which was put forward by the plaintiff, and which the judge saw fit to reject in toto.

40. Thus, this figure is to be included in the overall damages computation.

Summary

41. It follows from the foregoing that for my part I would allow this appeal to the extent that the damages assessment of the learned trial judge is to be varied from the sum of $73,768 to the sum of $160,668.00 ($70,000 + $78,668 + $7,000 + $5,000.00).

Interest and costs

42. As ordered by the judge, interest will run on the sum awarded for PLSA (that is, $70,000) at the rate of 2% from the date of the writ until the date of the judgment herein, and there is to be interest at ½ of the judgment rate on accrued special damages (in this instance, the sum of $48,668) from the date of the accident to the date of judgment herein.

43. There is to be no variation of the costs order below.

44. As to the costs of this appeal, we have been told by counsel in this case that there is no factor which requires to be taken into consideration.  In my view this is regrettable given that this clearly was a case in which on appeal the plaintiff pitched his case far too high, and thus should have been subject to the risk of a Calderbank offer.

45. Be that as it may.  In the event, the plaintiff has succeeded, and thus should have the costs of this appeal, such costs to be taxed if not agreed.

Hon Cheung JA :

46. I agree.

Hon Woo VP :

47. I agree.

48. The orders of this court on this appeal will be those specified by Stone J in his judgment.