LEUNG YUK-KWAN v. MAPLE PROFESSIONAL BEAUTY CENTRE LTD.

HCPI274/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 274 OF 2002

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J U D G M E N T

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Introduction

1. The plaintiff, now aged 22, having been born on 10 November 1980, and a Form 7 graduate, brought suit against the defendant, the proprietor and operator of a beauty salon, for personal injuries and loss sustained following weight reduction treatment on 9 October 2000 that went drastically wrong. Interlocutory judgment was entered on 6 May 2002 upon failure by the defendant to file notice of intention to defend.

The Plaintiff's Injuries

2. On 9 October 2000 the plaintiff, then aged 19, revisited the defendant's beauty salon for a second course of fat reduction and slimming treatment for which she had earlier pad $1,500. A staff of the defendant applied a so-called "fat-losing" electric blanket to her person, operating it in such a negligent fashion that the plaintiff's right leg was severely scalded, causing immediate pain and eventually blistering and ulceration. At the time, the staff treated her burn injury with cream, advising that the injury was inconsequential. The plaintiff did not seek medical attention until 12 October 2000, when the wounds failed to heal and blistering had occurred. She consulted a private practitioner, Dr Chow Ip-wang, and was treated with antibiotics and cream.

3. Her injuries began to ulcerate, and on 18 October 2000 the plaintiff sought and obtained treatment at Princess Margaret Hospital. 10 days later she received further treatment at Queen Mary Hospital. On both those occasions she was prescribed a course of antibiotics and her wounds dressed.

4. A number of medical reports detail the nature of her injuries and the treatment received to date. I do not propose to summarise them here. It suffices to make references only to the more salient observations and findings in them.

The Medical Evidence

5. When the plaintiff was assessed by Dr Chung Ho-yin of Queen Mary Hospital on 28 October 2000, a patch of main wound at the middle part of the right shin with yellowish centre and granulation tissue at the periphery and satellite lesions of healed wounds at the lateral side of the main wound were readily observed. The seriousness of the scald injuries and their distribution over the lower limb are graphically depicted in a series of photographs produced. The scarring is indeed unsightly, as I have observed them to be in court.

6. On 21 December 2000, the plaintiff was examined by Dr Yeung Chi-keung. At the time, she presented multiple ulceration over her right leg. The healing over of the ulcers was considered satisfactory upon reassessment on 6 January 2001.

7. There can be no controversy that the plaintiff has lost considerable confidence and self-esteem as a consequence of the accident. She is petite in stature and most presentable in appearance. It is not surprising that she once harboured a dream of becoming an air stewardess or a model, or work in the tourist industry. She said her dream has been shattered by the defendant's negligent conduct.

8. A psychological assessment was conducted by Dr Chloe Chin of Queen Mary Hospital. The report is dated 26 May 2001. Her conclusion is as follows:

"I think Ms Leung suffers from adjustment disorder to the wound she sustained. She places undue emphasis on her physical appearance. She also harbours catastrophic, irrational and rigid thoughts in relation to her injury and its effects on her life. She believes that her dream to become a successful tourist guide/air hostess is totally relied on her physical appearance and the wound/scar will inevitably shatter her dream. She has difficulties adjusting to the wound and gives up herself. I have tried to help her to deal with the situation in a more realistic manner. However, she seems preoccupied with the wound and ways to remove the scar. She sees the total removal of the scar as the only way out of her predicament. Her lack of insight and resistance to psychotherapy have made psychological intervention very difficult at this stage."

9. On 14 August 2001, a psychiatric assessment was conducted by Dr Peter Ho Pang-yin. Dr Ho opined that the plaintiff was suffering from depressive reaction to her injuries. The symptoms presented included reduced zest, interest, drive, motivation, appetite, sleep disturbance, fatigue, feeling of worthlessness and of suicidal ideas, impaired concentration and memory, and associated somatically induced constipation. He assessed whole person impairment at 15 per cent from the psychiatric disability.

10. Psychiatric and psychological treatment was indicated as being beneficial to the plaintiff. Psychiatric help offered privately would cost about $3,000 per month. Dr Ho was not able to indicate the duration of such treatment, as much would depend on a patient's progress and response.

11. On the same day, the plaintiff was examined by a cosmetic surgeon, Dr Otto Au. He noted the following:

"1. Right thigh: five small dots of pigmented scar over the upper part of posterior surface.

2. Right leg:

(a) a large round pigmented scar over the upper one-third of the interior surface measuring 45 x 50 mm. It is irregular; the edge is slightly raised;

(b) at the lateral side of the above scar, a long vertical linear scar of 120 millimetres lies beside the round scar;

(c) a small dot of pigmented scar at the medial side of the posterior surface of the right leg just below the popliteal area measuring 5 x 7 mm;

(d) measurement of the biggest part of the calves of the lower legs shows the following:

left leg - 143 mm circumference

right leg - 140 mm circumference;

(e) right foot - the toes appear to be slightly distorted.

Impression:

This lady suffers ugly scar over the front and back of her right lower extremity. The scar over the front of the right leg is very ugly. It may be improved over time (as long as four years). They are the direct result of a scald injury caused by either the malfunction of a beauty machine or lack of proper management of such machine."

12. He then ventured to suggest that the scarring amounted to 3 per cent cosmetic disability of the whole person, which, with plastic surgery at a projected cost of $43,500, should reduce the disability figure to 2.1 per cent of the whole person.

13. The plaintiff admitted that she wanted the laser treatment as advised, but did not have the wherewithal to fund it. She looks to the defendant for payment.

Pain, Suffering and Loss of Amenities

14. There can be no doubt that the injuries sustained fall below the "serious injury" category as set out by the Court of Appeal in Lee Ting-lam v Leung Kam-ming [1980] HKLR 657, however badly the plaintiff has been reacting to her misfortune. Reference had been made to a number of cases, but none was, not unexpectedly, directly on point. These were: Yanti & Anr v Chu Shiu-chuen, HCPI 1176 of 2000; Leung Pui-yiu v Wong Yin-kuen & Ors, HCPI 453 of 2000; Cheang Kam-ian v Hong Kong Prime Printing Company, HCPI 143 of 1998; Leung On v Chan Pui-ki (an infant), [1996] 2 HKC 565; and Kan Kit-yuk v Chung Kwok-chuen [1997] 2 HKC 21.

15. In my considered view, a sum of $300,000, as advanced by counsel, is probably close to the mark. I therefore assess damages under this head at this figure.

Pre-trial Loss of Earnings

16. At the time of the mishap, the plaintiff was a first year student in the Higher Diploma in Travel and Tourism course run by the Hong Kong Institute of Education. She had aspired to work as an airline hostess or in tourism following graduation. The accident resulted in her dropping out from the course. But for the accident, she would have graduated in June 2002. She explained that her psychological and psychiatric disturbances had made it impossible for her to complete her studies. This I wholly accept.

17. At the time of the accident, the plaintiff was giving private tuition, earning her, on average, about $9,200 per month. She said she was unable to resume coaching after the accident. For two months in April and May 2001, she obtained work as a junior secretary at a monthly salary of $7,000 in BSR International Travel Limited. This did not last and she was dismissed owing to her psychiatric disability. Over the ensuing two months she worked in a hair salon, earning $8,000 per month. Again, she was let go for the same reason. She remained unemployed until June 2002, when she recommenced offering private tuition. For the months of June and July 2002, she earned a total of $9,000. Since then she has been out of work, despite trying to find employment.

18. To assessment, the plaintiff's actual income receipts were:

(a)	wages from BSR International Travel Limited	$14,000
(b)	hair salon salary	$16,000
(c)	private tuition	$9,000
	Total:	$39,000

19. The plaintiff has claimed total loss of tuition income from the date of the accident until her notional graduation in June 2002. A sum of $193,200 is sought for this period.

20. When the plaintiff testified briefly, it was apparent to me that private tuition, by its nature, was an unsteady source of income. It was seasonal work, with greater demand when students were cramming for examinations. She taught for two months in the summer of 2002 and promptly stopped. It seemed her services had been particularly required over the exam period. One rather thinks that work during school summer vacations of about two months in duration is probably quite thin on the ground as a private teacher.

21. I would therefore assess her loss of income from tuition for the 21 months from accident to notional graduation in June 2002 thus:

($9,200 per month x 19 months) = $174,800.

22. The plaintiff had hoped to obtain employment upon graduation as an airline hostess. No evidence of the probable income achievable by such individuals was before the court. As I have remarked, the plaintiff is of small and slim build. Whether she would satisfy the height, educational and English language and other undoubted requirements, and indeed what the exact requirements would be, are matters of speculation. There has been no attempt to adduce such evidence.

23. Reality is often harsh. What one wishes and what one gets are often entirely different things. It would not be right to assume, therefore, that she would necessarily be successful in realising her undoubted ambition. She can, of course, carry on working as a full-time private teacher, in a hair salon, or as a junior secretary, as the evidence has demonstrated she is well capable of doing.

24. Counsel referred to the Quarterly Report of Wage and Payroll Statistics for March 2002 and suggested the plaintiff was, as of July 2002, capable of earning $14,486 per month. This salary is for the category of supervising, technical, clerical and miscellaneous non-production workers in airline companies.

25. Little is known of the plaintiff's secretarial skills, albeit she was briefly engaged as a junior secretary. In my opinion, given the state of deflationary economy prevailing, rising unemployment and such imponderables as whether or not the plaintiff would necessarily have found work as an air hostess, it is more realistic to assess her past and indeed any prospective loss of income upon the basis that she is more than likely to find work as a clerical or secretarial staff.

26. Accordingly, by reference to the same statistics, I hold that from July 2002 to trial, with some luck, she might well have obtained employment. Under Clerical and Secretarial Workers, a salary of $11,395 per month is given for clerks in hotels, airlines and travel companies. This is the multiplicand I shall adopt for the five-month period from July to November 2002 inclusive. Her income would have been $56,975:

(5 x $11,395) = $56,975.

But for the accident, she would have amassed a total of $231,775:

($56,975 + $174,800) = $231,775.

From that must be deducted actual income receipts obtained of $39,000. This leaves a net pre-trial loss of income at $192,775:

($231,775 - $39,000 = $192,775.

I award her this sum as damages for past loss of income.

Prospective Loss of Earnings

27. The plaintiff is currently 22 years old. She is a Form 7 graduate, able to read and write English and Chinese. Her scarring aside, I do not consider that this claim is entirely competent, given my finding that the plaintiff should be able to obtain work, despite her permanent cosmetic disability, in a clerical or secretarial position. Judicious use of clothing would conceal the remaining scars not improved by laser treatment.

28. Dr Otto Au stated that the estimated time for recovery following cosmetic enhancement would be 270 days, or approximately nine months. Final recovery would take considerably longer, at between three and four years. I shall factor into this head of claim a period of nine months' loss of income at $11,395 per month to cater for the expected laser treatment. During this time, the plaintiff will, no doubt appreciating that her scarring will be made less hideous, come to terms with her injury and move on. The commencement of psychiatric counselling for which provisions will be made in this ruling would make her task the easier.

29. For prospective loss of income I shall award her a sum of $102,555, being:

($11,395 x 9 months) = $102,555.

Loss of Earning Capacity

30. Her permanent residual scarring may, to some extent, render her handicapped in the market place in seeking or resuming employment. Damages will be computed using a multiplicand of $11,395 and a multiplier of 12 months. This works out at $136,740, which I shall round up to $137,000.

Future Medical Care

31. Cosmetic laser treatment, according to Dr Otto Au, costs $43,500. Psychiatric treatment, on Dr Peter Ho's evidence, is $3,000 per month. According to the plaintiff herself, Dr Ho was supposed to have indicated a likely treatment period of a year, although Dr Ho did not say so in his report. I am prepared to allow counselling for a year. That would an additional expense of $36,000. Total medical care would therefore be $79,500:

($43,500 + $36,000) = $79,500.

Travelling would have to be entailed. A reasonable sum of $3,500 is claimed for this purpose. This I too allow. The total award under this head of claim comes to $83,000:

($79,500 + $3,500) = $83,000.

Loss of Mandatory Provident Fund

32. This will be assessed on her income post trial as claimed. With a likely salary of $11,395 per month, over nine months she would have lost $5,127.75 in benefits, being:

($11,395 x 9 months x 5 per cent) = $5,127.75.

Specials

33. These comprising of wasted school fees, medical and travelling expenses and nourishing foods amounted to a reasonable figure of $27,492. I have no difficulty in allowing this claim in full.

Summary of Award

35. General damages shall attract interest at 2 per cent per annum from the date of service of the writ to the date of judgment. There shall additionally be interest at half judgment rate on special damages from the date of the accident to judgment. The plaintiff shall have the costs of this assessment, taxed if not agreed, with certificate for counsel. There shall also be legal aid taxation of the plaintiff's own costs prior to the discharge of the legal aid certificate.