SCHMIDT HAILEY DAI v. LAM SIK CHU

HCPI 773/2015

[2019] HKCFI 1289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 773 OF 2015

_____________________________

_____________________________

_____________________

J U D G M E N T

_____________________

1.  This is an action for damages for personal injuries sustained by the plaintiff while she was taking a shower on the night of 23 August 2014, shortly before 11 pm, in premises located at the front portion of the 1^st floor of 25 Mong Kok Road in Kowloon, Hong Kong (‘the premises”). The water pipe connected to the hot water tank suddenly became detached and she was severely scalded by the escaping hot water. At the material time, the defendant was the owner of the premises[1]. She has been sued in negligence and for breach of the common duty of care under the Occupiers Liability Ordinance, Cap. 314. Although she had filed a defence in person, she has not taken any further part in the proceedings. She has not appeared in any of the check list reviews of the action and she was absent at the trial.

The accident

2.  The police responded to this incident in a timely manner.  In the letter dated 22 October 2014[2] from the Mong Kok District Police Station, the police stated that they responded, to the report made to them, at about 11:07 pm.  Their investigation at the premises revealed that, while the plaintiff was bathing at the premises, hot water splashed out from the loosened decorative ceiling.  They found that the water pipe located above the decorative ceiling had become detached from the water heater. As a result, the plaintiff’s upper body and four limbs were burnt and she was sent to Kwong Wah Hospital and later transferred to the Burn Unit of Queen Mary Hospital (“QMH”).

3.  The detached water pipe is shown in a photograph taken by staff of the Office of the Licencing Authority of the Home Affairs Department[3], to whom a complaint had been lodged regarding this incident[4].

4.  The medical records from the Accident & Emergency (“A & E”) Department of Kwong Wah Hospital showed that the plaintiff was admitted at 11:32 pm on 23 August 2014. It was noted that she suffered from major burns from being scalded by hot water while bathing.  According to the medical report of Dr Man King Hung dated 29 October 2014[5], the plaintiff attended at the A & E Department of Kwong Wah Hospital on 23 August 2014 for scald injury by hot water sustained on the same day.  Dr Man examined her and found scald wounds over her chest, buttock and four limbs, involving about 21.5% of her total body area.  She was treated and admitted into the Burn Unit of QMH for further management.  She was discharged on 15 September 2014.

5.  The plaintiff is resident in the United States of America and she can read and write English.  She was born deaf and mute.  Accordingly, steps were taken to procure the services of a sign-language interpreter to interpret the evidence that she was going to give.  However, these were unsuccessful and her evidence was received by the use of an electronic tablet, on which questions posed to her were typed for her to read, and for her to respond to by typing her answers on the tablet.

6.  After she was affirmed, the plaintiff made some corrections to her witness statement.  She then confirmed that her witness statement was true and she adopted it as her evidence in chief. I find her to be a credible witness and I accept her evidence as truthful.

7.  The plaintiff was born on 5 March 1972.  She was 42 years of age at the time of the accident.  She is 47 years old today.  Her husband, Peter Andrew Schmidt, is also a deaf and mute person.  They have 2 children, Daniel Andrews Schmidt and Austin Ming Schmidt.  She came to Hong Kong with her family as tourists on 20 August 2014, staying, first, at a hotel in Wanchai before moving, on 23 August 2014, to stay at the premises.  Her husband had booked the premises, for the family to stay in from 23 August to 25 August 2014, through AirBnB, an online booking agency for accommodation in many countries of the world.  They met a Mr Will Li by appointment at 10 am on 23 August 2014 at the Mong Kok MTR Station Exit A1 in order for them to store their luggage at the premises.  They did not “check in” until 3 pm that afternoon when they met Mr Li again.  He showed them around the premises and gave them the key to the premises and the password to access the ground floor main door.

8.  As the plaintiff was taking her shower, shortly before 11 pm, in the bathroom of the premises, the water pipe connected to the hot water tank suddenly became detached and she was severely scalded by the escaping hot water.  She was knocked down by the large spray of escaping hot water and she crawled out of the shower area. Later, the police and an ambulance arrived.  The plaintiff did not know who called the police.

9.  I am satisfied, in the absence of any evidence from the defendant, that the defendant, the owner of the premises on the date of the accident, was the occupier of the premises within the meaning of the Occupiers Liability Ordinance, Cap. 314.  In the absence of any evidence to the contrary, I find that the defendant had sufficient degree of control over the premises to be an occupier of the premises, at the material time of the accident, within the meaning of the said ordinance. I also find that the plaintiff was her lawful visitor, at the material time of the accident, within the meaning of the said ordinance. As occupier, the defendant owed the common duty of care to the plaintiff to take such care as, in all the circumstances of the case, was reasonable to see that the plaintiff would be reasonably safe in using the premises for the purposes for which she was invited or permitted to be there.  Those purposes included taking a hot shower in the bathroom of the premises.  The common duty of care that was imposed on the defendant required the defendant to take reasonable care to maintain the water pipe connected to the hot water tank in safe condition and good repair.

10.  I infer, from the sudden detachment of the water pipe connected to the hot water tank, which resulted in a large quantity of hot water cascading onto the plaintiff, that the defendant was in breach of the common duty of care under the said ordinance in that she failed to take reasonable care to maintain the water pipe connected to the hot water tank in safe condition and good repair. If it had been maintained in a safe condition and in good repair, the accident would not have occurred.

11.  I also find that the defendant’s aforesaid breach of the common duty of care under the said ordinance caused injury, loss and damage to the plaintiff.  I find the defendant liable to the plaintiff in damages for breach of the common duty of care under the Occupiers Liability Ordinance.  Having found the defendant liable as aforesaid, I need not deal with the other causes of action raised against the defendant in the statement of claim.

Injuries and treatment

12.  As stated in §4 above, the plaintiff was admitted to the A & E Department of Kwong Wah Hospital and noted to be suffering from major burns involving 21.5% of her total body area.  She was transferred to the Burn Unit of QMH for further management. Her burns were treated conservatively until her condition was stable and she was fit for travel to the United States for further treatment.

13.  The plaintiff was discharged on 15 September 2014 and returned to the United States where she was admitted to the Burn Centre of MedStar Washington Hospital Centre in Washington D.C.  Most of the burns were treated conservatively until they healed.  She had one operation for deeper areas of burn on both lower limbs.  The deeper areas of burn were debrided and grafted with split thickness mesh skin grafts which were harvested from her left thigh.

14.  After her discharge from hospital, she received follow-up treatment as an outpatient. She was given physiotherapy for about 6 weeks.  She was also given scar management therapy.  She wore pressure garments on both lower limbs.  Although she had been given silicone treatment initially, it had to be discontinued when she developed an allergy to silicone.

15.  The plaintiff received education up to university level and graduated with an associate degree in fine art.  She worked as a waitress for 3 years as a waitress and supervisor at the conference hotel at Gallaudet University, which is a centre of learning for persons who are deaf or hard of hearing.  Most of her clients were deaf and she communicated with them with sign language.  As supervisor, she had to perform administrative duties and she also had to assist waitresses, which required her to be on her feet for long periods of time.

16.  A functional capacity evaluation was performed on 24 March 2015.  The report from the Metropolitan Occupational Therapy Inc. stated that the plaintiff was performing within the range of light physical demand level.  She was unable to return to a previous employment which required a medium physical demand level. She was referred to a work hardening program to increase the capacity for work-related activities, and overall tolerance for standing and walking.

17.  On 4 December 2015, she attended a plastic surgeon at the John Hopkins Hospital and had laser treatment for the scars of her leg.

18.  Pursuant to the leave granted to the plaintiff, the plaintiff was examined by Dr Ian H Nicolson on 10 March 2016.  His expert medical report dated 18 March 2016 has been admitted into evidence without the need for Dr Nicolson to give oral evidence.  Dr Nicolson is a well-known expert on cosmetic injury.  He has given expert evidence in our courts on multiple occasions and I have no hesitation in accepting his expert evidence in itsentirety.

19.  The plaintiff had not returned to work by the time of her examination by Dr Nicolson.  Prior to her accident, she used to socialise with her friends and she was active in outdoor activities.  She went hiking, biking, running, swimming and participated in beach activities. She also played badminton and table tennis.  When examined by Dr Nicolson she presented the following complaints:

(1)   Ugly scars on her arms and legs cause her embarrassment. She wore long clothing to conceal the scars.  She could not wear short sleeve tops, shorts or dresses which exposed her scars;

(2)   the scar on her legs caused itchiness, discomfort and pain at times;

(3)   she could not stand for more than an hour without experiencing discomfort in her legs and she could not walk distances without experiencing discomfort in her legs;

(4)   she wore supportive stockings most of the time as they helped to alleviate her symptoms;

(5)   she also took medication for pain – one tablet a day; and

(6)   her social life has been curtailed since her accident. She stayed at home most of the time and could no longer participate in outdoor activities or sports.

20.  Dr Nicolson’s physical examination revealed:

(1)   Noticeable areas of mild hyper and hypopigmentation consistent with healed burn scars present over much of the surface of the arm, back of hand, front of wrist and adjacent palm of the plaintiff’s right upper limb;

(2)   noticeable scars similar to those stated above were present over much of the plaintiff’s left upper limb;

(3)   healed burn scars were present over most of the circumference of the plaintiff’s lower right leg and ankle extending over the dorsum of the foot; in the calf and shin areas, the skin was hyperpigmented, soft and pliable with a coarse texture; and in the ankle region the scars were conspicuous with irregular patches of dark and pale scars.  The scars were mildly hypertrophic in nature, raised, thickened and reddish in colour in parts.  On the postero-lateral aspect of the ankle region there was a conspicuous band of raised thickened scar 11.5 cm x 2 to 3 cm.  Within this area there was a conspicuous area of skin graft 6 cm x 2 cm. The reddish areas of scar were tender on palpation. There was a functional range of ankle movement but thickened scars limited full movements. No contractures were present but the scars became taut when stretched;

(4)   over the lateral aspect of the plaintiff’s left thigh was a conspicuous area of hyperpigmented skin graft donor area scar 26.5 cm x 6 to 7.5 cm. Most of the scar was soft, flat and pliable with a coarse surface texture. Within the scar was an area of mildly thickened, raised reddish hypertrophic scar 11.5 cm x 3 cm. The hypertrophic scars were tender on palpation; and

(5)   burn scars and skin grafts were present over the circumference of the plaintiff’s lower left leg, ankle and dorsum of the foot. Most of the scar area was mildly hyperpigmented soft and pliable, with a coarse surface texture; conspicuous scattered areas of hyperpigmented raised, thickened scars were present over the back of the calf and much of the ankle region. The thickened scars were tender on palpation; and noticeable areas of mesh skin were present over the calf. There was a functional range of ankle movement but full movements were limited by scars.

21.  Dr Nicolson was of the opinion that the plaintiff suffered permanent functional and cosmetic disabilities as a result of the accident.  The scars were consistent with the history of injury.  She had no pre-existing scars.  The fact that she was born deaf and mute compounded her disabilities.  The medical treatment she had received was appropriate and sick leave was granted to her until the scars were well healed and stable and she was fit for some form of employment. However, she is unfit to resume her pre-injury employment as a canteen supervisor which required her to also undertake duties as a waitress and to be on her feet for periods of time arranging and dispensing food.  She could not walk or stand for extended periods without experiencing discomfort and pain in her legs.  Although she was now fit for light, mainly sedentary duties, in an office or elsewhere, her ability to find alternative employment was hampered by her being deaf and mute which limited her employment prospects. Although with time, her walking and standing abilities were likely to improve, nevertheless, she was unlikely to be able to undertake heavy duties.

22.  The scars of her lower legs and ankle regions became hypertropic in parts.  They were now becoming more stable and should continue to improve over the years.  Part of the scars were still reddish in colour and mildly vascular. These areas were the main source of itch, discomfort and were tender when palpated. The symptoms should all improve as the scars continued to mature.  Her scars caused discomfort, loss of self-esteem, restricted her choice of clothing, restricted her outdoor activities, prevented her from participating in her pre-accident outdoor and sporting activities, and also prevented her from doing heavy work.  Dr Nicolson assessed her whole person impairment at 9%.

23.  Appended to Dr Nicolson’s report were 21 colour photographs of the plaintiff’s upper and lower limbs showing the scars that Dr Nicolson had described in detail in his report. My impression from these photographs was that there was extensive scarring on both feet and ankles of the plaintiff which extended up to the calf of her left leg. The scars were ugly and conspicuous and must have been the cause of considerable distress suffered by the plaintiff. The large scar that was formed on the donor area of the left thigh was also conspicuous.

24.  The plaintiff give evidence about the present condition of the scars in the course of her evidence before me:

“Q. Now, I would like to ask you some questions about the condition of your scars. Page 70 to 82 are the photos taken by the Dr Ian H Nicolson upon his examination on you. Can you turn to page 76 of the hearing bundle which shows how your leg was injured? How is your leg right now? Are the scars still visible?

A. The scars are still red. My doctor told me to live with those scars because of Asian skin kind. Due to these scars I no longer wear short-sleeve dress, short or bikini in the public which has lowered my self-esteem.

COURT: Ms Chow, may I take hold of this point?

MS CHOW: Yes, most grateful.

COURT: Madam Schmidt, may I have your permission to examine those scars to see whether any changes have occurred since the photographs were taken by Dr Nicolson? Now, I am particularly interested in the scars of the lower legs.

A. Yes, that’s fine.

COURT: So what I am going to do is to ask you to come to this side of the courtroom. I will come down. I will point out to you a particular photograph of the report and you can show me the scar shown in that photograph. Is that all right?

A. Okay.

COURT: Ms Chow, will you please also accompany the witness?

MS CHOW: Yes.

(Examination of the scars on the plaintiff’s lower legs by court)

COURT: If you look at page 77 of the bundle, it shows the scar on your left thigh where the donor skin was taken from. Has that scar remained the same or has it improved?

A. Yes, the scar is still there.  The colour improved better.”

25.  I could see that the scars on the plaintiff’s lower legs remained conspicuous but they were less red than the scars depicted on the photographs appended to Dr Nicolson’s report. Even so, I have little hesitation in concluding that the scars remain a cause of continuing distress on the part of the plaintiff. These scars are ugly and permanent.  The plaintiff gave evidence that, including the laser treatment for the scars on her legs that she had on 4 December 2015 at the John Hopkins Hospital, she had undergone 5 procedures in 3 years, the last one being in May 2017. She will have 2 more procedures at the John Hopkins Hospital at a cost of US$1,300 per session.

26.  In §36 of her witness statement, the plaintiff had said that she still suffered constant pain on the skin of her body, that she had difficulty standing for a long time, and that she was unable to sleep at night and needed to take painkillers in order to sleep. In her evidence in court, she said that she still felt pain in both of her legs, especially if she stood for more than three hours.  Sometimes she had to take painkillers to help her feel better.  Her husband would massage her legs before going to bed. The pain was not as severe as before.

Damages for pain, suffering and loss of amenities (“PSLA”)

27.  I have been referred to the following authorities on PSLA awards in cases involving cosmetic disability:

(1)   Tam Wing Yan v Smart Elegant Enterprises Ltd   DCPI 1104/2010, 21 February 2011;

(2)   Leung Yuk Kwan v. Maple Professional Beauty Centre Ltd HCPI 274/2002, 4 December 2002;

(3)   Limbu Prya v Hei Yuet Palace Restaurant o/b Kenberg Investments Ltd  DCPI 2273/2008, 11 June 2010;

(4)   Yeung Hau Keung v Yip Wang Kit trading as Hang Park Decoration Company and Others  HCPI 691/2011, 7 May 2014;

(5)   Tsang Choi Ping v Li Yin Lun  HCPI 23/2012, 10 May 2013;

(6)   Lui Sheung Lok v Wah Wah Travel Services Ltd   HCPI 1188/1999, 14 September 2000.

28.  In addition, I have also had regard to the following authorities on PSLA awards in cases involving cosmetic disability:

(1)   Wong Tung Ming v. Kwok Chiu Hung & Ors  HCPI 928/1995 & 88/1997, 29 September 1999;

(2)   Thelma Chavez & Ors v. Fong Ka Yiu [2001] 3 HKLRD 1 HCPI 570 & 666/1999, 5 March 2001;

(3)   Susi Yanti & Anor v. Chu Shiu Chuen HCPI 1176/2000, 2 November 2001; and

(4)   Leung Hing Sum v. Yau Lee Construction Co. Ltd & Ors HCPI 422/2000, 12 October 2001.

29.  As can be seen from the above cases, the award for PSLA in cases involving cosmetic disability is usually made, not only for the cosmetic disability, but also for other injuries including limitation of mobility or hand function on account of severe scarring, psychiatric conditions, or other injuries such as orthopaedic injuries.  Thankfully, the plaintiff in the present case does not suffer from these additional conditions.  Nevertheless, she suffers from permanent, substantial, conspicuous scarring, particularly in her lower limbs. The cosmetic impairment from the scarring obviously has a greater impact on a female victim than a male victim. The plaintiff has undergone numerous treatments and she will undergo 2 more treatments. She has suffered considerable loss of amenities.  Awards for damages for PSLA for injuries falling within the Serious Injury category currently start at $530,000[6]. I place the plaintiff’s injuries as falling below the Serious Injury category for which I would have awarded the sum of $450,000 as damages for PSLA.  However, the plaintiff only claims damages for PSLA in the sum of $350,000 and this is the award I make in the present case.  The claim for $350,000 as damages for PSLA was made in the Revised Statement of Damages dated 3 August 2016.  At the start of the trial, I granted leave to the plaintiff to amend the Revised Statement of Damages.  However, no amendment was made to the claim for damages for PSLA.  I cannot award the sum of $450,000 to the plaintiff as this amount has not been claimed. Once again, I remind practitioners to have regard to the rise in the level of awards for damages for PSLA when updating their clients’ Statements of Damages[7].

Pre-trial loss and damage

30.  I am satisfied that the plaintiff has incurred pre-trial medical expenses in the total sum of $126,002[8] and travelling expenses in the sum of $3,000.  I award the total sum of $129,002 as pre-trial special damages.

31.  I accept into evidence the further documents submitted under cover of the plaintiff’s revised calculations on quantum dated 19 March 2018.  I am satisfied from the plaintiff’s evidence, the documentary evidence contained in the trial bundle, and from these further documents that the plaintiff earned US$3,484 (or HK$27,175) per month, net of tax, prior to the accident.  I am satisfied from the evidence, and from the expert medical evidence, that the plaintiff is entitled to claim damages for full loss of earnings for the period of almost 6 months from 24 August 2014 to 16 February 2015 in the total sum of $156,709 assessed as follows:

Pre-trial full loss of earnings for the period from 24 August 2014 to 16 February 2015: ($27,175 x 5 months) + ($27,175 x 23/30) = $156,709.

32.  I accept Dr Nicolson’s opinion that the plaintiff is unfit to resume her pre-injury employment as a canteen supervisor. The plaintiff has conceded that she would have been able to return to gainful employment earning about US$2,435 or HK$19,000, net of tax, performing light work from 17 February 2015. I am satisfied from the plaintiff’s evidence, the expert medical evidence, the documentary evidence contained in the trial bundle, and from the further documents adduced that the plaintiff could have earned about US$2,435 or HK$19,000, net of tax, performing light work. I am satisfied that the plaintiff is entitled to claim partial loss of earnings for the period from 17 February 2015 to the date of judgment in the total sum of $416,925 assessed as follows:

Pre-trial partial loss of earnings for the period of 17 February 2015 to 17 May 2019: ($27,175 – $19,000 = $8,175) x 51 months = $416,925

33.  I do not accept the plaintiff’s concession that social disability income received by the plaintiff should be deducted from the award of damages for pre-trial loss of earnings. It is clear from the decisions of the Court of Appeal in Tang Kwong Chiu v. Lee Fuk Yue [1980] HKLR 588 and Wong Kou Shee & Anor v. Chu Che Ping & Anor [1981] HKLR 249 that social welfare benefits are regarded in Hong Kong as being benevolent in nature and should not be deducted from the award of damages for loss of earnings.

34.  The total award for pre-trial loss of earnings is $573,634 ($156,709 + $416,925).

Future loss of earnings

35.  The plaintiff was 42 years old at the time of the accident and is 47 years old today. I find that the plaintiff will continue to work until the age of 65 and that she will continue to suffer future partial loss of earnings at the rate of $8,175 per month.

36.  According to Table 10 of the Personal Injury Tables Hong Kong 2019, at a discount rate of 2.5%, the multiplier for loss of earnings to age 65 for a female plaintiff currently aged 47 is 14.35.

37.  Accordingly, I award future loss of earnings in the sum of $1,407,735 assessed as follows:

$8,175 x 12 months x 14.35 = $1,407,735

Loss of Earning Capacity

38.  I award the plaintiff the sum of $150,000 as damages for loss of earning capacity, as claimed.  The tortfeasor must take the plaintiff as he finds him or her. If the plaintiff were to lose her job for any reason, it would take a much longer time for her to find another job, given the fact that she is deaf and mute.

Future Medical Expenses

39.  I award the sum of $20,280 (US$1,300 per session x 2 sessions = US$2,600 x 7.8) as the cost of 2 more sessions of treatment at John Hopkins Hospital.

Summary of my award

40.  A summary of my award in the total sum of $2,630,651 is as follows:

Pre-Trial Loss and Damage	HK$
Special Damages	129,002
Loss of Earnings	573,634
Sub-total:	702,636
Future Loss and Damage
Loss of Earnings	1,407,735
Loss of Earning Capacity	150,000
Medical Expenses	20,280
Sub-total:	1,578,015
PSLA	350,000
Total:	2,630,651

41.  I award interest on general damages for PSLA at 2% per annum from the date of the service of the writ to the date of judgment. I also award interest at half of the current judgment rate on pre-trial loss of earnings and special damages from the date of the accident to the date of judgment.

42.  I award the costs of the action to the plaintiff to be taxed, if not agreed.