CHUI WING LAI v. CHUNG DOK RESTAURANT LTD. and PANG HEUNG LIN (Third Party)

1989, No.A3177

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. Judgment was entered for the Plaintiff against the Defendant on 28th March 1994 with the assessment of damages for hearing before a Master. This assessment took place before this Master on 27th February 1995. At the date of judgment the Defendant was ordered to pay an interim payment of $150,000.00 into Court for the benefit of the Plaintiff and such sum to be invested or otherwise dealt with by the Court until further order.

2. This action arose when the 2½ year old girl was taken by her mother to the toilet in the Defendant's restaurant on 4th September 1988. While attending to her young son in the toilet she heard a loud scream from her daughter, CHUI Wing Lai. She turned around to see her daughter seated in a red plastic bucket of what appeared to be boiling water. Wing Lai attempted to stand up but was unable to do so. The lower part of her body was wet from the liquid in the bucket which appeared to have bubbles and there was either steam or smoke rising from the liquid in the bucket. When Madam Pang removed Wing Lai from the bucket she attempted to wash her with cold water but was unsuccessful. She then carried Wing Lai, who was crying and screaming very loudly, out of the bathroom. Madam Pang heard the cleaning lady say that Wing Lai had been scolded by a mixture of bleaching liquid and boiling water which was in the red plastic bucket.

3. Madam Pang carried Wing Lai from the 2nd floor where the Defendant's restaurant was situated to the ground floor where she met her husband. By this time, she saw that Wing Lai's skin had begun to peel off. Wing Lai was taken to the Lady Trench Polyclinic where a Doctor attended to her and arranged for her to be transferred to Princess Margaret Hospital by ambulance. At Princess Margaret Hospital she was admitted and seen by the consultant surgeon, Dr. LAU Chi-Wai, who was called to give evidence.

4. Dr. Lau in giving evidence said he could not recall seeing the victim, Wing Lai, when she was admitted to Princess Margaret Hospital 8 years ago on 4th September 1988. Dr. Lau, who is the Medical and Health Officer at Princess Margaret Hospital said he had prepared his report dated 10th November 1990 from hospital records. In this report he says that Wing Lai had first to second degree burns over 40% of her body and circumferential burn over her left forearm and hand when she was admitted. Conservative treatment including dressing, analgesia, antibiotic and intravenous fluid replacement were given to the victim. Dr. Lau also said in his report that Wing Lai was found to have electrolyte disturbance resulting in generalised convulsion during her period in hospital. Wing Lai responded well to rehydration. Dr. Lau reported that most of the burn area responded well to conservative treatment. A split skin graft from her right thigh to her right lip region was performed on the burn area and that had healed satisfactorily. Dr. Lau said the patient responded well after the split skin graft and was later discharged on 22nd November 1988.

5. Dr. I.H. Nicholson, a plastic surgeon, also gave evidence that he examined Wing Lai on 25th February 1991 and prepared a report which be produced. He said that the skin graft operation to Wing Lai's right lip had not been successful. Dr. Nicholson in his report said that following Wing Lai's discharge from hospital she had worn pressure garments to prevent excessive scar formation on her left hand for one month, to her chest area for six months, and at the date of the examination some 2½ years after the accident was still wearing pressure garments to her lower abdomen, buttocks, groin and thighs. In fact, the evidence was that Wing Lai had only removed the pressure garments in May 1994 on medical advice after having worn them for nearly 6 years. When seen by Dr. Nicholson, Wing Lai appeared embarrassed and would not comment on her scars. In his report Dr. Nicholson noted that Wing Lai had conspicuous scarring on her trunk, thighs and left hand caused by scold and chemical burns to 40% of her body. His report detailed the area of scarring mainly around her genitalia and her thighs. Various scars were described as red and thickened, ugly red raised burn scars, and ugly red raised hypertrophic scarring. It was Dr. Nicholson's conclusion that Wing Lai had permanent cosmetic disability which he assessed at 10%. He said that although the red raised scars would become paler and flatter, they would always remain conspicuous and ugly. Dr. Nicholson also said that from a psychological aspect it is possible that the scars could be a source of considerable embarrassment to her when she grows older and may interfere with her marriage prospects. He had commented that Wing Lai had no functional disability as a result of this accident.

6. Dr. Gordon MA gave evidence and produced two medical reports and ten colour photographs of the scarring to Wing Lai's body. It was his opinion that Wing Lai may later require an operation to relieve the contractures of the scars as she continues to grow. He estimated the cost of any future operation at somewhere between $8,000.00 to $20,000.00. In his first report Dr. Ma assessed Wing Lai's cosmetic disability as 30%. He confirmed that she had no functional disability except the scar around her vulval region which he said may give rise to discomfort as she grows into adulthood. Dr. Ma also commented that Wing Lai was likely to suffer from psychological impairment based on his observations of the victim. Dr. Ma commented that between the date of the first examination of Wing Lai on 6th March 1989 and the second examination on 26th March 1991 the red pigmentation of her scars had improved and the thickness of the scarring had been reduced. Further photographs produced revealed the significant improvement.

7. CHUI Hon Ching also gave evidence that he was Wing Lai's father and produced a statement setting out details and the medical treatment given to his daughter. He said $5,000.00 was spent on tonic food for Wing Lai. He said he had spent a total of $3,068.00 on medical expenses in treatment of his daughter and $108.00 to the occupational therapist clinic. He estimated that the sum of $13,750.00 had been expended for medicine, ointment and dressings in treatment of Wing Lai's burns. He also estimated that $2,000.00 had been spent on travelling expenses in taking Wing Lai to her medical appointments. Her father said it was now less embarrassing for Wing Lai without the pressure garments when she goes to the toilet. He said his daughter is shy, too quiet and more withdrawn than other girls of her age. She tends to hold back in making friends at school or outside her immediate family according to her father in giving evidence. He considers Wing Lai shows long term effects from this accident in regard to her social life.

8. The last witness called was Dr. David Y.F. Ho, who is a clinical psychologist. He said he wrote two reports on Wing Lai after seeing her with her parents on 14th May 1990 and 22nd August 1994. Dr. Ho produced these reports to the Court. He noted in his first report that Wing Lai was concerned about disfigurement, especially at school and wanted to wear trousers to cover up her ugliness so that she was not seen by other children. She feels embarrassed during physical education classes when she is wearing only shorts and T-shirt. Wing Lai had also complained to Dr. Ho of pain and itchiness in the vagina during the summer months. It was claimed that her physical condition was not as good as previously because she catches colds easily and sweats at night. While in hospital Wing Lai had expressed resentment against her mother over the accident in saying "I don't want you. I want Daddy". It was Dr. Ho's conclusion that Wing Lai had suffered great psychological harm as a result of the accident. When he examined her in May 1990 Wing Lai was only 4 years of age and even then showed concern and even embarrassment about her ugliness and accordingly to Dr. Ho this concern had a realistic basis in view of her disfigurement. As a traumatic event Dr. Ho rated the accident as severe. He also gave evidence that it was reasonable to predict that Wing Lai's heterosexual relationships and her prospects of marriage would be adversely affected in her adult life. His conclusion was that her future would be fraught with greater perils than usual.

9. The victim in this case, Wing Lai Chui, appeared in Court before the Master with both parents and appeared to be a normal child for one of her age, that is, 8 years. She appeared to have loving and devoted parents and they gave the impression of having a close family unit. In the second report of Dr. David Y.F. Ho dated 22nd August 1994 Wing Lai is stated to be doing very well academically and appears to be well adjusted at school being within the top 10 of her class and had been promoted to Primary 3 at that time. According to a teacher interviewed by Dr. Ho on the telephone, Wing Lai was described as reliable, learns fast, and gets along well with others. The teacher said that though Wing Lai is quiet, she appears to be a normal child. The teacher reported no special problems worthy of concern associated with Wing Lai's disfigurement.

10. In his written submission Mr. R.K. Sujanani, as Counsel for the Plaintiff, argued that Wing Lai's injuries placed her within the substantial injury category so that damages for pain, suffering and loss of amenities should come within the range of $550,000.00 to $650,000.00. Counsel was unable to cite any similar cases where burn injuries had been suffered by a victim of such tender years as Wing Lai had in this case. It is the Master's opinion that Wing Lai's injuries place her in the serious injury category as she has not suffered any functional disability and the extensive scarring to her body does not restrict her reasonable mobility and enjoyment of life in general. It is accepted that she will suffer as she grows older in forming heterosexual relationships and that her marriage prospects are likely to be affected adversely. As such the range revised by the Court of Appeal in the recent case of CHUN YAT NAM (Appeal No.92/1994) for the serious injury category was from $250,000.00 to $335,000.00. Counsel's submission that the categories of injuries are not mutually exclusive is accepted, but it is my view that there is insufficient evidence of future psychological impairment to warrant Wing Lai's injuries placing her in the higher category. It seems to be a suitable case to make a separate award for cosmetic disability which will be done in this case.

11. As for the award for pain, suffering, and loss of amenities, account is taken of the painful scolding injuries she sustained in the accident, her time in hospital which included a skin graft operation, the long period of out-patient treatment and the need to wear pressure garments for almost 6 years, in awarding the sum of $300,000.00 under this head of damages.

12. On the question of the separate award for cosmetic disability heed is taken of the assessment by both Dr. I. Nicholson and Dr. G. Ma in their reports that her cosmetic disability was 10% and 15% respectively. Note is also taken of the fact that Dr. Ma had assessed her cosmetic disability as 30% on his first examination of Wing Lai's injuries on 6th March 1989. The colour photographs clearly show that some of Wing Lai's scars are ugly and conspicuous and the others are at best noticeable. It is true that the location of the scars over the middle section of her body means that the scars can generally be covered by the clothes she is wearing at the time. However, every day when she showers and dresses into clothes she must be aware of her disfigurement. This awareness and concern will only increase as she grows into adulthood, and as has been said, this will restrict her social relationships and marriage prospects.

13. Following the authority put forward by Counsel for the Plaintiff in CHU TIK KWAN HCA No.A2623/1988 where a separate award for cosmetic disability was allowed in the sum of $120,000.00 on 22nd June 1989, and taking account of inflation since that date, a sum of $200,000.00 will be awarded for cosmetic disability.

14. As Wing Lai is only 8 years of age, damages for loss of future earning capacity or for loss of future earnings were not sought and expressly left open at this time as this was a provisional assessment under Section 56A of the Supreme Court Ordinance.

15. An award to meet the cost of psychological counselling as recommended by Dr. David Y.H. Ho for Wing Lai and her parents was also sought. Dr. Ho described Wing Lai as being overly concerned with her disfigurement and obsessed with her scars which appears to be getting worse as she gets older. Dr. Ho did acknowledge that both Wing Lai and her family had done quite well in coping with the trauma of the accident and its consequences. It was his conclusion that if these psychological difficulties continue to be unresolved, they would make life miserable for Wing Lai and her family in the years to come as she approached adolescence and adulthood. It was the Master's impression that Dr. Ho had exaggerated these fears, however, it is conceded that psychological counselling would be beneficial for Wing Lai and her parents. It was Dr. Ho's evidence that the costs of this counselling would be $40,000.00 and an award is allowed for this sum.

16. There was also a claim for future medical expenses to continue visits to a doctor and an occupational therapist at Princess Margaret Hospital. This follow-up treatment as Wing Lai continues to grow to monitor her scars to see if contractures occur should, of course, continue until she is 18 years. There is no reason why this follow-up treatment should not continue at Princess Margaret Hospital, rather than he carried out in the private sector with the increased cost which would be incurred. This cost has not been quantified on an annual basis and the nominal sum of $2,500.00 inclusive of travelling expenses will be allowed. The costs of any future operations to deal with contractures of the scars has been expressly reserved.

17. As for the claim for loss of earnings of the parents under special damages on the authority of Donnelly [1994] QB 454 the following sums will be allowed:-

(a) As for the father, CHIU Hon Ching, he should be compensated for 6 days of unpaid leave from work in the sum of $1,020.00.

(b) As for the mother, PANG Heung Lin, she gave up her work to look after Wing Lai when she was discharged from hospital on 22nd November 1988. She had been earning $3,500.00 her month and was only able to resume working on 23rd March 1991 after approximately 28 months. It was submitted that had Madam PANG continued to work as a seamstress her earnings would have increased to $5,000.00 per month according to figures from the Census and Statistics Department. Adopting a median from these figures at $4,250.00 ($3,500.00 + $5,000.00 ÷ 2) Madam PANG's loss of earnings are calculated as follows:

$4,250.00 x 28 months = $119,000.00. Her actual earnings of $5,068.90 over this same period need to be deducted leaving a balance of $113,931.10. On the same authority of Donnelly, referred to above, this claim for loss of earnings by Madam Pang Will be allowed.

18. The additional heads of special damages will be allowed as set out hereunder:-

19. A summary of the damages awarded are set out hereunder:-

General Damages

Special Damages

20. From this total sum of damages an interim payment of $150,000.00 made by the Defendant should be deducted so that the balance of damages is $532,877.10.

21. There will be interest at 2% per annum on the general damages above under items (1) and (2) from the date of service of the writ until the date of this assessment and at the rate of 4.75% per annum on the special damages under items 5 and 6 above (being pre-assessment losses) from date of the accident to the date of this assessment.

22. The costs of this assessment to the Plaintiff against the Defendant, to be taxed if not agreed, and including a Certificate for Counsel. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.