CHUI PO HING AND ANOTHER v. LO SUEN

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was the passenger of a light goods vehicle driven by the Defendant when it rammed into the iron railings near the Keiling Har roundabont at about 2:50 a.m. on 20th October 1985. The Plaintiff was, at the time of the accident and still is, an infant and these proceedings were commenced in 1988 by her father as next friend. By a consent order dated 28th March 1989 it was ordered that the Defendant do pay the Plaintiff damages to be assessed and costs. Particulars of Special Damages were filed on 1st April 1989 and the Defendant's Reply was filed on 12th April 1989. By a further consent order, interim payment in the sum of $50,000.00 was made in favour of the Plaintiff pending the assessment. Amendments by way of a Re-amended Statement of Claim were made to her claim for damages. The assessment was heard on 27th and 28th September 1989 when it was adjourned part-heard. Further hearings took place on 21st October 1989, 18th January 1990 and 19th January 1990 when decision was reserved.

2. The Plaintiff called a total of four witnesses including herself. The Defendant called only one witness. A bundle of pleadings and 2 separate bundles of document, one from each party, were placed before the court. Hearsay notices and counter-notices were served by each party respectively prior to the assessment.

3. The Plaintiff was born on 17th November 1969 and was aged almost 15 at the time of the accident. As a result of the accident she suffered the following injuries:-

The major nerves, arteries and tendons of the left ankle were found to be severed. Though it is not quite clear if she went through eight, or nine, surgeries as she alleged, she did have quite a number of surgeries for:-

The right lower limb fractures were treated with traction and plaster for half a year. She was hospitalised for a total of 203 days on 4 separate occasions betwen October 1985 and November 1986 for the said surgeries. She attended out-patient physiotherapy treatment on 11 occasions between February 1986 and March 1987.

4. She was knocked unconscious after the accident. When she regained consciousness, tremendous pain set on her which lasted for very substantial periods throughout her hospitalisation. After the plaster was removed she was put on crutches until March 1986. Thereafter, she sustained the following disabilities:-

5. Dr. David Lee assessed the Plaintiff to suffer a total of 25% permanent disability of the person, inclusive of 5% for cosmetic injuries. Dr Jerry Lam engaged by the Defendant gave the Plaintiff a total of 15% permanent disability of the person exclusive of cosmetic injuries. He disagreed with Dr. Lee's assessment of 5% for the cosmetic injuries as being too higher, but did not give his own assessment of the same.

Pain, Suffering and Loss of Amenities

6. As a consequence of the substantial disabilities she suffered the Plaintiff is no longer able to pursue her pre-accident way of life. She is deprived of her enjoyment of various sports such as swimming, rowing, roller-skating, badminton, ice-skating and ball games like volleyball and basketball. She also experiences difficulties in playing with her son (aged 2) or taking him out to enjoy outdoor activities. She is very conscious of her scarrings and would not even allowed her husband to see them. She would feel acutely embarrassed when her son was curious about her injuries and scars. She always wears trousers or down-to-ankle length dress. She cannot wear shoes with heels. She became a totally different person after the accident. She was, however, fortunate enough to meet one of her former acquaintances again during her periods of hospitalisation who later became her husband.

7. Apart from her disabilities, the Plaintiff suffered tremendous pain having to undergo about 8 surgeries. She was in and out of hospital for a period of almost fourteen months. In summary, the Plaintiff was met with a shocking accident, underwent tortuous and painful medical treatments and have to live with substantial and horrendous physical and cosmetic disabilities for the remainder of her life.

8. Counsel for the Plaintiff urged me to make separate awards under this head for physical and cosmetic injuries. Counsel for the Defendant argued otherwise, and submitted that only one award should be made as cosmetic injury is but one of the factors to be taken into account in such an award. In theory, irrespective of how one approaches the issue, cosmetic injuries ought to increase the final damages to be awarded at the end of the day by more or less the same amount, as both approaches would take that into account as a separate factor on top of other physical injuries. In reality, however, it appears not to be the case. I was referred to almost thirty cases in total by counsel on this issue. In general, the total damages under this head tends to be increased by a greater amount in cases of separate awards. The inclination towards a lesser total award in single award cases are quite marked.

9. The same issue came before Master Suttill in Kwan Lai Ming v. Au Wing Tin H.C.A No.7865 of 1983 (decision delivered in October 1985).  At page 6 of the assessment, in refusing to make a separate award, the learned Master drew the following distinction:

"It has been urged upon me that a special and separate assessment ought to be made for item 4. (cosmetic impairment). This has been done in the recent case of Li Chim Ying v. Lam Siu Nam and another 1984 No.3527 and there is no doubt in my mind that in that case it was proper to do so. In that case the scar was conspicious and ugly - two features not possessed by instant case. If any particular injury is prominent it may be appropriate to assess it separately but not in my view otherwise."

 

10. In Li Ting Lam v. Leung Kam Ming, [1980] HKLR 659, Cons, J.A., in formulating the four categories of disablement when delivering the judgment of the Court of Appeal, had forewarned that the guidelines should not become a straight jacket:

"Disablement may he divided into four categories of ascending order according to its severity. There is, of course, no rigid distinction. That cannot be, for severity of injury presents a sliding scale. Furhermore, there may in a particular case be factors not in themselves disabling, which are sufficient to take that case from one category into another."

11. However, the learned judge found it necessary to further explain the proper use of the guidelines in the subsequent case of Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd., [1988] 2 HKLR 650. After explaining the rationale for formulating the guidelines and the danger in their use, the learned judge explained at page 653:

"The starting point is a comparison of the injuries in the case in question with injuries in similar cases in which awards have already been made by the court. Consideration must next be given to any special feature or features which might influence the award in the particular case and only then, when a tentative conclusion will already have been reached, should attention be turned to the established guidelines. If the tentative conclusion does not conform to the guidelines then serious consideration should be given to whether there is indeed sufficient justification for an award that is otherwise apparently out of line with the general pattern. This Court did not by Lee Ting Lam intend to confine damages in a straight jacket. If the sartorial analogy is to be pursued, this Court hoped rather to provide them with what in earlier days would have been referred to as a good foundation garment, a garment upon which all other dresses appropriate for particular occasions would sit comfortably. "

12. The four categories of disablement in the Lee Ting Lam case concerned mainly physical and functional disablement. Obvious factors, not in themselves functionally disabling but would be sufficient to raise the injuries from a lower to a higher category, envisaged by the quoted observation are impairments of cosmetic and mental/psychological nature. If the flexibility in the formula envisaged by the Court of Appeal has been liberally applied, there ought to be no real difference in the quantum of the total damages whether a "single" or a "double" award is made.

13. That having said, I am, however, of the view that the proper approach is to make one single award under this head. It is conceptually wrong to confine separates awards to cosmetic injuries, if separate awards are to be made under this head. Logically, why then shouldn't separate awards be made to mental impairments, anxiety and shock, or even for each physical injury to the limbs? It cannot be right for the court to make separate awards for each and every type of different injuries and then added them all up as a total award. It has always been the proper approach to view the overall general situation of the Plaintiff, including factors such as injuries, sufferings, disabilities and impairment in enjoyment of life; and assessed all such factors as a whole to come to an expression of compensation in monetary terms. I failed to see the justification of singling out cosmetic injuries as a distinct factor meriting special treatment. The proper approach is to take an overall view of the Plaintiff's situation comprehensively, embracing all relevant factors which then cumulate into one single monetary sum.

14. I was referred to no less than thirty cases by counsel under this head. I do not propose to set them all out in detail in comparison with the instant case. In Li Chum Ying, supra, awards of $150,000.00 and $80,000.00 respectively were made in respect of far less severe injuries and functional loss to the upper limb, and for cosmetic disfigurement to the shoulder region of a young unmarried female Plaintiff (aged 24 at time of assessment). In Ho Yuk Yin v. Lau Ah Lung H.C.A. No.2141 of 1984, awards of $120,000.00 and $50,000.00 were made in respect of a schoolgirl aged 14 at time of trial suffering slightly more severe injuries and disabilities. Counsel for the Defendant submitted the total awards, if updated, would be in the region of $220,000.00 to $230,000.00. As the decision was in 1985, a reasonable updating would have taken the figures higher than counsel had submitted. I was also referred to several cases involving facial disfigurement with awards of between $200,000.00 to $350,000.00 being made. Cases with less degree of similarities than the above 2 cases have awards ranging between $180,000.00 and $250,000.00.

15. The Plaintiff's functional disablement would have placed her towards the upper end of the "serious injury" category. Further to be taken into account are the unusual multiplicity of surgeries, long periods of hospitalisation, impairment of enjoyment of sports and a normal social and family life, the horrendous cosmetic injuries to her lower limbs (though they can be concealed by wearing trousers); and her acute embarrassment of such disfigurements. A comprehensive consideration of the additional factors would have advanced then Plaintiff above the middle of the "substantial injury" category. Compensation under the "substantial injury" category was raised to between $180,000.00 and $225,000.00 in 1988 by the Court of Appeal in Lau Che Ping, supra. It represented a total increase of 125% over a period of 8 years since Lee Ting Lam, or an average of 15.6% per year. However, it would be inappropriate to arbitrarily continue to apply such a rate of adjustment to update the guideline. The Court of Appeal indeed warned of the danger of applying standard rates of inflation without regard to reality (see the judgment of Cons, J.A. at page 654). A reasonable adjustment for inflation ought to have taken the figurer in the "substantial injury" category to between $210,000.00 and $260,000.00.

16. After a review of the large number of cases I was referred to and a consideration of the guideline, the award made under this head is to be in the sum of $240,000.00.

Loss of Earnings/Earning Capacity

17. The Plaintiff was a F.5 student aged almost 15 at the time of the accident. She came from a typical working class family. Her results at school was slightly below average. As a result of the accident her studies were terminated in October 1985. She resumed her schooling for a short while in September 1986, but had to cease again for further surgery to be performed on her. She never resumed further schooling since, attributing the reason to her embarrassment about ber disabilities. After the accident the Plaintiff worked at 2 boutiques and a restaurant as salesgirl at monthly salaries of between $2,500.00 to $3,000.00 for a few months on each occasion. In about April 1988 she joined her present employer's company, Kai Lee Travel Services Ltd., as an ordinary clerk. She started at a basic salary of $1,800.00 a month which has since been increased to $2,500.00. In addition she also gets a commission of between $800.00 to $1,000.00 a month. Her average monthly income is about $3,400.00 (at the time of the assessment).

18. No claim was made for any loss of earnings before 1st January 1989, save the claim for 15 months and 10 days at the rate of $2,500.00 per month for "loss of schooling to be equated with loss of earnings for period from 20th October 1985 to 31st November 1987". She started working at the beginning of 1987. It was argued that but for her hospitalisation her working life could have started earlier from November 1985. It would have been a loss for about 14 months from November 1985 to December 1986, not 15 months. I do not accept that to be a proper claim. It is likely that but for the accident, the Plaintiff would have continued with her studies in F.5. She would then have started working after she had obtained her results of the examinations in the summer of 1986, probably around July. In the premises, one is really talking about 5 months, and not 14 months. At the rate of $2,500.00 (wage of her first job in 1987) for 5 months, an award of $12,500.00 is made for this claim.

19. The Plaintiff also claimed that but for the accident she could have become a "tour guide" (or tour co-ordinator) after working two years as a clerk. It was urged upon the court that as a tour guide the Plaintiff could have earn at least $7,000.00 a month for the first two years, and thereafter at the rate of at least $13,000.00. This was achieved by drawing an analogy with the position of Mr. Wong Wai Kit, a tour guide in the same agency as the Plaintiff. I accept the evidence of Mr. Wong. It was submitted that the Plaintiff's salary as a clerk after 2 years ought to be about $4,500.00 a month (an increase of 20% together with year-end bonus). It was agreed that 14 is the maximum to be adopted as a multiplier if the multiplier/multiplicand approach is to be adopted for this claim. The multiplicand, the Plaintiff submitted ought to be $3,500.00 ($7,000.00 - $3,500.00) for the first 2 years and $7,200.00 ($13,000.00 - 10% tax - $4,500.00) for the remaining years.

20. Dr. Lam called by the Defendant, though said in chief that with the aid of special shoes the Plaintiff ought to be able to perform the normal duties of a tour guide, finally agreed in cross-examination that she would be prevented by her disabilities to do so and that a sedentary job would be more suitable for her. Dr. Lee, though not quite positive that she would not be able to perform the duties of a tour guide opined that it is at least not advisable for her to do so, and that a sedentary job is really what she should do. Her inability to stand or walk for any substantial period would have made life very difficult for her. Dr. Lee said her condition would deteriorate if she tried to walk or stand for very substantial periods. I am satisfied that she is unsuitable to perform the duties of a tour guide.

21. It was argued by counsel for the Defendant that as the Plaintiff did not aspire to be a tour guide at the time of the accident, or even ever thought about her future career at all, it would be inappropriate to consider any career as a tour guide. The court must consider the aspiration and situation of the Plaintiff, in so far as future loss is concerned, as at the date of the assessment. I am satisfied that though the Plaintiff cannot speak adequate Mandarin and that the major clientele of her employer are Mandarin speaking Taiwanese visiting Hong Kong and mainland China, it would not be too difficult for her to learn the dialect within a reasonable time. Her ability in learning the English language at school was quite reasonable. I am also satisfied that she possesses the required attributes and personality to become a tour guide but for her disabilities. In conclusion, I am satisfied that but for her disabilities, she could have become a tour guide after working a few years as a clerk acquiring more experience and improving her linguistic ability. However,as she appeared to me to be less dynamic and able than Mr. Wong Wai Kit, and needed improvement in her Mandarin; she probably would take more than 2 years (which was the time it took Mr. Wong) to become a tour guide. In view of the stress in the work of a tour guide, it was conceded on behalf of the Plaintiff that 40 is about as far as one can go in this sort of work. In the premises, it is likely that she would have become a tour guide after 3 or 4 years as a clerk, and would have enjoyed a working life of about 17 notional years in that job. Counsel for the Plaintiff submitted that even after taking into account the uncertainties, a resonable multiplier ought not to be less than 10.

22. Account have to be taken of: the uncertainties; accelerated payment; the fact that the earnings of a tour guide would depend to a great extent on tips which would vary in accordance with the standard of services offered, the generosity of the clients and the future of the tourist industry in Hong Kong; such income can be seasonal and unstable; and that usually it will take some time before one can reach optimum income. I shall adopt a multiplier of  6 at a flat rate of $6,000.00 per month. The award for loss of future earnings is thus in the sum of of $432,000.00.

23. The Plaintiff also claimed compensation for loss of earning capacity. As the Plaintiff had conceded the maximum working age of a tour guide at 40, she would have to find alternative employment after that age. In view of her chosen career of a tour guide, it is not unreasonable for her to continue to work in the office of a tour agency or some related business. Her disabilities would have little effect on her ability to find a clerical or desk job in the open market. In the premises, though her choice of employment is theoretically restricted by the disabilities she suffered, there is little risk that she would in reality suffer any financial loss as a result of the same. No award would be made for loss of earning capacity.

24. The Plaintiff also claimed a sum of $21,600.00 for her mother's loss of earnings. The Plaintiff's mother started to work in a restaurant, delivering food to the tables, at a monthly salary of $1,800.00 several months prior to the accident. She had, since the accident, ceased such employment to take care of the Plaintiff during her year of convalescence. She never worked again after that. Her evidence on the necessity of ceasing employment for a whole 12 months is rather unsatisfactory. Counsel for the Plaintiff suggested that she ought to be compensated for 8 months' wages between October 1985 and June 1986. In view of the Plaintiff's extensive periods of hospitalisation and difficulty in moving around, I find such a claim to be reasonable and an award in the sum of $14,400.00 is made in respect of the same ($1,800.00 x 8).

25. The balance of the Plaintiff's claims is agreed in the sum of $14,055.00, comprising of:-

26. In the premises, total damages to be awarded to the Plaintiff is in the sum of $712,955.00. I was informed that both parties wished to be heard on the question of interest and costs after the quantums of disputed heads of damages are ascertained (in view of interim payments made prior to the assessment). I shall hear parties on these matters as requested.

Dated this 12th day of February, 1990.