ACHACOSO, WARLY CABANEROS v. LIU MAN KUEN

HCPI 121/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 121 OF 2001

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ASSESSMENT OF DAMAGES

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Introduction

1. The Plaintiff took out these proceedings in January 2001. The Statement of Claim together with the Statement of Damages were filed in May 2001. On 11 June 2001, interlocutory judgment was entered against the Defendant as she failed to file notice of intention to defend.

2. According to the affirmation of service filed herein dated 27 April 2004 made by Wong Wing Fung, the Defendant was duly notified of the hearing of the assessment of damages.

The Plaintiff's Case

3. At all material times, the Plaintiff was under the employ of the Defendant as a domestic helper under an employment contract dated 14 October, 1999.

4. In the morning of 25 February 2000, while the Plaintiff was ironing clothes, the Plaintiff accidentally damaged a grey tank-top. The Defendant was extremely angry. She ordered the Plaintiff to put her hands on the ironing board. The Plaintiff did so. The Defendant then held the Plaintiff's hands down firmly with her right hand. The Defendant then took the hot electric iron with her left hand and then drew the iron across the back of the Plaintiff's hands. The Plaintiff felt excruciating pain in both hands. The Defendant spoke harshly to the Plaintiff before leaving the flat. The Plaintiff reported the matter to the police and was subsequently sent to Tang Shiu Kin Hospital for treatment.

5. On 24 May 2000, the Defendant was convicted of the offence of inflicting grievous bodily harm contrary to Section 19 of the Offences Against the Person Ordinance and was sent to prison for 18 months. The conviction and sentence were upheld on appeal in October, 2000.

6. Upon examination at Tang Shiu Kiu Hospital, the Plaintiff was assessed to have sustained secondary burn over the back of her hands. It took one month for the wounds to heal. After about a month, the scars became very red and raised.

7. The Plaintiff became very upset as the scars were very ugly. The Plaintiff felt very depressed and lonely as a result of what had happened. She felt that she was trapped in Hong Kong as she was unable to leave until this matter is finally disposed of.

8. It is the Plaintiff's case that the scars affected her seriously. Whenever she looked at her hands, she would think of the event again. She was ashamed of what had happened and regarded that as a lifetime embarrassment. The Plaintiff found it particularly embarrassing when she was in front of other Filipinos who remarked her as "the one".

9. The Plaintiff complained that whenever she carried heavy objects, her hands become painful and itchy. Her hands would also become red and swollen after she had been carrying heavy objects. Further, her hands react adversely to detergent.

10. According to the medical report of Dr. Ian Nicolson dated 3 July, 2000, he found that there was an ugly area of scaring approximately 60 x 70 mm on the dorsum of both hands. The scars were irregular in shape and pigmentation and in parts are red raised, thickened and hypertrophic. Dr. Nicolson assessed her permanent cosmetic disability at 5%. Annexed to the report were the photographs depicting the scars on both hands (see Trial Bundle, Tab C, p. 6 onwards). There is no other updated medical report.

11. The Plaintiff, married with 4 children, was 28 years of age when the assault took place. The Plaintiff is now 32 years old.

Pain, Suffering and Loss of Amenities

12. Fortunately, the Plaintiff does not suffer any permanent incapacity except those set out hereinabove. The wounds healed shortly after the incident though the Plaintiff continued to receive medical treatment until end of 2000. During the hearing, the Plaintiff did show her hands to me. There is great improvement to the scars since after she was medically examined by Dr. Nicolson. The scars are no longer red and raised as depicted in the photographs aforesaid. They are no longer that conspicuous and ugly. If one is a few feet away from the Plaintiff, it is not easy to spot the scars unless one pays particular attention to that.

13. However, it is clear that the scars, though not that noticeable, are permanent. They are at the dorsum of both hands and thus anyone who has normal daily life contact with the Plaintiff could notice the presence of the scars. There is virtually no way for the Plaintiff to conceal the scars save and except by wearing gloves which indeed might make the Plaintiff more distinctive.

14. Although there is no medical evidence to support the claims of her emotional feelings, any reasonable and sensible person can understand how the Plaintiff would feel after the assault and with the unsightly scars. In my judgment, it is nothing but normal.

15. Mr. Gidwani, Counsel for the Plaintiff, referred me to Susi Yanti v Chu Shiu Chuen (HCPI 1176/2000, 2nd November, 2001). In that case, Ms. Yanti who was just 20 years old was attacked by dogs and sustained multiple abrasions and laceration wounds over both upper and lower limbs. As a result, Ms. Yanti had to wear 19 very conspicuous, darkly pigmented, raised and scattered scars of significant dimensions on the back of her right leg. There were also other multiple faint scars. On her left calf, there were 4 obvious similar unsightly scars and a number of faint puncture markings. The court considered that an award of HK$380,000 for PSLA is appropriate. The permanent cosmetic disability sustained by Ms. Yanti was assessed at 5%. Mr. Gidwani relied on this authority and submitted that a sum of HK$480,000 for PSLA in the present case is just and appropriate.

16. Yanti's injury is more serious than the present case. The scars were conspicuous and raised even at the time of trial. In the present case, as I said hereinabove, though the scars are still easily noticeable, they are no longer red and raised. Having considered all the relevant matters, I consider that an award of HK$280,000 for PSLA is just and appropriate.

Pre-trial Loss of Earnings

17. Before the assault, the Plaintiff was employed by the Defendant as a domestic helper. She earned a monthly salary of HK$3,670 per month together with food allowance of HK$300 per month if food is not provided. It is the Plaintiff's case that she was constructive dismissed by reason of the Defendant's behaviour. Further, she was advised by the Immigration Department that she was not allowed to look for a new job until the criminal proceedings was finalized. It was only in August, 2001 that the Plaintiff was advised by the Immigration Department that she may look for a new job in Hong Kong. Eventually, the Plaintiff found the present employment in October, 2001.

18. I must say that I failed to see the reason why the Defendant is not entitled to look for a new job before the conclusion of the criminal proceedings against the Defendant. Further, I also failed to understand why the Immigration Department did not advise the Plaintiff to look for a new job soon after appeal on the part of the Defendant was dismissed in October, 2000.

19. Nevertheless, there is no evidence before the court showing that the Plaintiff has failed to mitigate her loss. For the reason aforesaid, I allow the claim for loss of pre-trial earnings from 25 January, 2000 to 27 October, 2001 (19.75 months) at HK$4,970/month being the total of (a) monthly salary at $3,670; (b) food allowance at $300/month; and (c) accommodation at $1,000/month. The total is HK$98,157.50 ($4,970 x 19.75).

20. At paragraph 17 of the Revised Statement of Damages, the Plaintiff referred to the award of $9,675 made by the Labour Tribunal under case number LBTC 3062/2000 dated 1 August, 2000. That is the award by another Tribunal and should not be counted towards the claim in these proceedings.

Special Damages

21. The Plaintiff claimed a total sum of $4,117 being traveling expenses, hospital expenses, medical expenses and visa extension expenses. In my judgment, they are supported by evidence and are recoverable. I allow the sum in full.

Loss of Earning Capacity

22. The Plaintiff submitted that she is always at risk of losing her employment if at the end of the contract it is not renewed by the employer.

23. It is trite law that the Plaintiff must demonstrate a real and substantive risk of disadvantage in the labour market consequent upon the permanent disability sustained. In the present case, the existence of the unsightly scars and her physical limitations are, in my judgment, not sufficient to satisfy the requirement aforesaid. I thus make no award under this head.

Future Medical Expenses

24. The Plaintiff claims HK$1,500 for Vaseline (at HK$24/bottle for each month) to ease her pain, itchiness and tightness. She also claims HK$528 for future medical treatment.

25. It is a reasonable claim. I allow this item in full (i.e. HK$2,028)

Aggravated Damages

26. The Plaintiff claims HK$100,000 under this head. Mr. Gidwani referred the court to Appleton v Garrett [1996] PIQR, P1. Dyson J. in his judgment at p. 4 endorsed the speech of Lord Devlin in Rookes v Barnard [1964] AC 1129, 1221 and referred to the paper of the Law Commission at paragraph 3.3:

"In Rookes v Barnard Lord Devlin said that aggravated awards were appropriate where the manner in which the wrong was committed was such as to injure the plaintiff's proper feelings of pride and dignity or gave rise to humiliation, distress, insult or pain. Examples of the sort of conduct which would lead to these forms of intangible loss were conduct which was offensive or which was accompanied by malevolence, spite, malice, insolence or arrogance. In other words the type of conduct which had previously been regarded as capable of sustaining a punitive award. It would therefore seem that there are two elements relevant to the availability of an aggravated award, first, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong and second, intangible loss suffered as a result by the plaintiff, that is injury to personality."

27. There is no doubt that there was exceptional or contumelious conduct or motive on the part of the Defendant. She was the employer of the Plaintiff. She deliberately inflicted the injury for such minor mistake on the part of the Plaintiff so as to relieve her anger. This certainly gave rise to humiliation, distress, insult and pain.

28. In my judgment, the Plaintiff has made out a case under this head. I found that an award of HK$50,000 is fair and appropriate in this case.

29. To conclude, the Plaintiff is entitled to:

(a) Pain, suffering and loss of amenities	$280,000.00
(b) Pre-trial loss of earnings	$98,157.50
(c) Special damages	$4,117.00
(d) Future medical expenses	$2,028.00
(e) Aggravated damages	$50,000.00
	$434,302.50
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30. Up till the day of hearing, the claim for employee compensation is still pending. The Plaintiff should give credit for any award thereunder.

31. On general damages, the Plaintiff is entitled to interest at 2% per annum from the date of writ (21 May, 2001) to the date of assessment and thereafter at judgment rate until full payment. For special damages, the Plaintiff is entitled to interest at half judgment rate from the date of accident (25 February, 2000) to date of assessment and thereafter at judgment rate until full payment.

32. The Plaintiff is entitled to the costs of this assessment against the Defendant to be taxed if not agreed. The Plaintiff's own costs be taxed accordingly to Legal Aid Regulations. Certificate to Counsel. Liberty to apply.