LAU KIN LIN AND ANOTHER v. CHAN MEE CHING

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 8th March 1982 at about 2.00 p.m. the 2nd Plaintiff was walking on the pavement in Kwong Wah Street in Kowloon and carrying her 6 month old daughter - the 1st Plaintiff - on her back when she was struck from behind and knocked down by a motorcar. The owner of this motorcar was a passenger at the time and it was being driven by an employee or agent under his control. The owner of the motorcar has since died and the personal representatives of his estate have been sued as Defendants.

2. The issue of liability was not disputed and judgment was entered by consent against the Defendants on 22nd January 1985 with damages to be assessed. At this assessment damages were agreed between the parties as follows: -

3. The only outstanding issue on this assessment was the award for pain, suffering and loss of amenities for the 2nd Plaintiff. Counsel for the 2nd Plaintiff produced under Hearsay Notice a Bundle of 14 Documents mostly medical reports to be relied on at this assessment. No counter notice had been filed and Counsel for the Defendants raised no objection to this procedure. Counsel for the 2nd Plaintiff referred to the medical report of P. H. TSANG, a medical and health o officer in the Surgical Unit of Queen Elizabeth Hospital, outlining the injuries of the 2nd Plaintiff when she was admitted to Hospital on the date of the accident. These injuries were as follows: -

(1)	Contusion of right parietal region with a haematoma 3 cm. in diameter.
(2)	A 1/2 cm. long laceration of the right ear lobe.
(3)	One 4 cm. long superficial linear laceration of right anterior axillary line.
(4)	Four superficial laceration wounds, measuring 4 cm., 10 cm., 6 cm. and 10 cm. on the right lower quadrant of the abdominal wall.
(5)	Two superficial laceration wounds 2 cm. and 6 cm. long in the region of the right hip.
(6)	Two superficial linear laceration wounds each 2 cm. long on the medial part of the dorsum on the left foot.

 

This report records that these wounds were cleaned and sutured under local anaesthesia. The Neurosurgical Unit in its memo - Item 7 of Bundle of Documents - reported that a skull X-ray showed no fracture and examination of the 2nd Plaintiff revealed no neurological deficit. After treatment in Queen Elizabeth Hospital on 8th March 1982 she was transferred to Kowloon Hospital on 10th March and discharged on 15th March 1982.

4. Subsequently, the 2nd Plaintiff was examined by Dr. Ian H. Nicolson on 16th November 1982 and 23rd April 1985 and his reports on these examinations were referred to under Items 8 and 81 in the Bundle of Documents. After his examination on 16th November 1982 Dr. Nicolson concluded that the 2nd Plaintiff had a permanent cosmetic disability as a result of the scars from injuries sustained in this motor accident. It was his opinion that while the pigmentation of the scars would improve over a period of 12 months or so, the scars mould always remain noticeable and constitute a significant cosmetic disability. Furthermore, he commented that plastic surgery was unlikely to lessen her degree of cosmetic disability significantly. In his later report dated 23rd April 1985 Dr. Nicolson confirmed his earlier conclusion that the 2nd Plaintiff had a permanent cosmetic disability as a result of this accident. At that time he noted that the scars were all stable and would not change to any significant degree in future. It is noteworthy that in both his reports Dr. Nicolson uses terms such as "noticeable, conspicuous and unsightly" in describing the injuries of the 2nd Plaintiff without using stronger terms such as "ugly or disfigured". Attached to both reports were helpful coloured photographs of the 2nd Plaintiff's scars.

5. The only witness called at this assessment was the 2nd Plaintiff, who came from Thailand to settle in Hong Kong in 1980 with the result that she had some difficulty in fully understanding the examination conducted in Cantonese dialect. In her evidenc she stated that the injuries received in this accident affected her in that she was to embarrassed to wear shorts or go swimming because of the scars over her body. She claimed that she used to go swimming 2 or 3 times a week during the summer before this accident. However, in cross-examination she admitted she had not been swimming since her daughter was born 6 months before he date of the accident. The 2nd Plaintiff stated that she also suffered from recurring headaches and abdominal pains as a result of her injuries in this accident. These are the symptoms which she mentioned to Dr. Nicolson on both occasions that she was examined by him. She claimed that she had been prescribed medication in the form of pills by a doctor in Shamshuipo for her headaches. I find her evidence consistent in this regard and would accept that she suffers these after effects from her injuries. In cross-examination the 2nd Plaintiff conceded that the scars on her abdomen would be covered by a one piece bathing suit if she wanted to go swimming. She insisted that save for the scar on her right knee all the other scars referred to in Dr. Nicolson's reports were from her injuries received in this accident. I was told that the 2nd Plaintiff fell against and through a shopfront window after the impact with the vehicle which explains why she sustained so many lacerations. I accept that the scars referred to in the medical reports and photo-graphs apart from the scar on the right knee all arose from her injuries in the accident.

6. Mr. Dennis YU, Counsel for the Plaintiffs, referred me to several authorities which were mostly cases involving more serious injuries to the Plaintiff than in this case. In his submission, the appropriate award for pain, suffering and loss of amenities would be $30,000 taking into account inflation since the date of the authorities he referred to. Selina LAU, Counsel for the Defendants, for her part referred to a 1975 case where the injuries were not too dissimilar from the present case and urged upon me that the appropriate award should be $7,000 - $8,000 which included allowance for inflation since.

7. Aware that there were more recent authorities on this vexed question of damages for permanent cosmetic disability the assessment was adjourned to give this written judgment. Deputy High Court Judge O'Dea in a decision delivered on 8th November 1984 in CHEUNG Yuk-chun v. MITSUI CONSTRUCTION CO. LTD. HCA 12597 of 1982 was prepared to take into account permanent cosmetic disability to the legs and feet of a young girl Plaintiff. Obviously, the cosmetic disability in that case was much more serious than in the present case, so that total award in that case is not a helpful guideline save that cosmetic disability was taken into account in fixing the award under this head of damages. Again in LI Chiu-Ying v. LAM Siu-Lam and HO Chi-Cheong HCA 3527 of 1984 Master Betts in a judgment delivered on 16th May 1985 was prepared to consider an award for cosmetic disability separately under the general head of pain, suffering and loss of amenities. In that case the 24 years old female Plaintiff was unmarried and had a conspicuous ugly scar on the front of her left shoulder measuring 85 mm. in length by 23 mm. in width in parts. Although the scar in that case, as in the present case, was not visible when the Plaintiff was normally dressed, it caused her embarrassment when she went swimming with friends. The award of $80,000 in that case for permanent cosmetic disability would have to be considered to be at the upper end of the range for awards under this head. The present case can be distinguished from that case as the 2nd plaintiff here was married on 12th December 1980 before the date of the accident and her scars are smaller and mostly on parts of her body which are covered even if she was wearing shorts or a bathing suit.

8. In another recent decision faster Suttill on the other hand in KWAN Lai-Hing v. AU Wing-Tin HCA 7865 of 1983 in a judgment delivered on 4th October 1985 was not prepared to consider cosmetic impairment as a separate heed of damages unless the scar was both conspicuous and ugly which it was not in that case. For my pert I would concur with this approach and prefer to consider any permanent cosmetic disability as part of the wider head of assessment for pain, suffering and loss of amenities. After considering the evidence in this case in which 2nd Plaintiff sustained numerous superficial lacerations which required suturing, 7 days treatment in hospital and also taking account the permanent cosmetic disability arising from the scars from these injuries I would allow $20,000 damages under this head. Summary of assessment is as follows: -

9. There will be interest on the general damages @2% p.a. from the date the writ was issued on 3rd July 1984 to the date of the judgment on this assessment. The interest on the special damages will be 5.6% p a. from the date of the accident on 8th March 1982 until the date of the judgment on this assessment. There will be an order for costs on High court sale on this assessment to the Plaintiffs with the Plaintiffs' own costs to be taxed in accordance with Legal Aid Regulations. Certificate for counsel to issue.