FUNG WAI HAN v. HUI CHIK KEUNG AND ANOTHER

HCPI 383/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.383 OF 2002

------------------------------

-----------------

------------------------

J U D G M E N T

------------------------

1. The plaintiff brings this claim against her former employer for damages for personal injuries arising from an accident in the course of her employment with the defendant which occurred on 22 May 1999 in which the plaintiff was scalded by boiling congee resulting in 63% of her body suffering severe burns.

The Accident

2. The defendant runs a food store which is operated from two adjoining food shops housed inside the Tin Shui Market in Tin Shui Wai.  The two shops are respectively numbered 46 (selling cooked food) and 53 (selling dried grocery).

3. The plaintiff started working with the defendant in February 1997 as an odd job worker in Shop 53 which opens for business each day at 7 a.m.

4. Shop no.46, which also serves breakfast as a cooked food stall, opens for business daily at 6.30 a.m., namely, half an hour before the plaintiff is required to commence work each day.

5. On the day before the accident, namely 21 May 1999, the plaintiff was asked to help out at the cooked food stall of the defendant because of other workers going on leave.  As a result she had to attend for work half an hour earlier to start work at 6.30 a.m.

6. Both shops of the defendant have metal roller shutters which have to be unlocked and pushed upwards at the start of work each day.  That was normally done by a Mr Ko.

7. On the day of the accident, the plaintiff arrived at Shop 53 and together with another female co-worker, started to unlock and to open the metal roller shutter by pushing it upwards as Mr Ko was on leave that day.  That was the first time the plaintiff was involved with unlocking the metal roller shutter and pushing it up from its position from which it could be locked, after unlocking it.

8. Whilst they were trying to unlock the metal roller, another worker of the defendant, Ah Shing, using a cart with a handle, transported a large pot of boiling congee to outside the shop and left the cart with the pot of congee at a position rather close to where the plaintiff and the other female co-worker were unlocking the metal roller shutter, but behind them.

9. Just at the time when the plaintiff and her co-worker succeeded in pushing up the metal roller shutter after unlocking it, the plaintiff found some dust falling down from the shutter as it was rolling upwards into its casing on the top part of the doorway.  When the plaintiff instinctively stepped backwards to avoid the falling dust, she came into contact with the handcart on which was standing the large pot of boiling congee.  She lost her balance, knocked against the handle of the handcart and toppled the pot of boiling congee and fell with the pot of boiling congee spilling all over her body.

10. Generally, her neck, her back, both arms and thighs were all scalded by the boiling congee and those parts of her body sustained severe burn injuries.

Negligence conceded by defendant

11. At the commencement of the trial, I was informed by counsel for the defendant that the defendant now accepts that it was negligent of the defendant for its worker Ah Shing to have left the handcart with the pot of boiling congee so close in proximity to where the plaintiff was unlocking the metal roller shutter outside Shop 46.

12. In the circumstances, the defendant will not dispute liability for the accident to the plaintiff subject only to the question of contributory negligence which is still in issue.

13. The only outstanding issue in so far as liability is concerned is therefore the question of contributory negligence contended for by the defendant in this case.

14. I shall come straight to the issue of contributory negligence.

Contributory negligence

15. The contributory negligence of the plaintiff contended for by the defendant involves some disputed factual issues.

16. It is common ground that Shop 53 (the dry goods shop of the defendant) and Shop 46 (the cooked food stall of the defendant) are adjacent to each other in the Tin Shui Shopping Mall.  The two shops are separated by a dividing wall in between.

17. Photographs of the accident site shows Shop 53 to be on the left of the photographs while Shop 46 is on the right side of the photographs when one is facing the two shops.  Both shops have their own separate roller shutters.

18. It is also common ground that entry can only be gained into Shop 46 through a narrow gap just by the side of the dividing wall between the two shops since apart from that narrow gap, a counter blocks the rest of the shop front for Shop 46.

19. It is also common ground that the lock of the roller shutter for Shop 53 is right at the bottom of the shutter when the shutter is down, but at the middle part of the shutter (lengthwise).  There are two handle bars on each side of the lock at the bottom to facilitate the lifting up of the shutter when it has to be pushed up after being unlocked.

20. It is the plaintiff’s case that just before the accident, she was pulling up the shutter using the handle on the right side of the lock (i.e. the handle closer to Shop 46) with her right hand, she being right-handed, while her co-worker was pulling the handle on the left side of the lock.

21. When she succeeded in pushing the shutter upwards, some dust started to fall down on her as the shutter rolled up, she instinctively stepped backwards one step with her right leg.  With that one step, her right heel came into contact with the handcart on which was placed a large pot of boiling congee, but which she had no knowledge had been left standing outside the shop front just behind her until her heel came into contact with some part of the handcart when she stepped backwards that one step.

22. It was also the evidence of the plaintiff that when she turned her head backwards as she was falling and saw the handcart, she could see that the handcart was placed at an angle to the shop front (with the handle of the handcart somewhat tilted towards the side of Shop 53), with the front of the handcart facing the narrow gap which allows entry into Shop 46 but with a small space left between the front of the handcart and the entrance to Shop 46 so as to allow for a free passage into Shop 46.

23. Upon her heel hitting the handcart, after she had stepped back one step, she lost her balance, then turned her head to see that it was the handcart which her right heel had come into contact with.  As she had lost her balance, she fell backwards somewhat to her right side.  Her right hand then fell onto the handle bar of the handcart and the weight of her body falling pushed the handle bar downwards thus toppling the handcart and the large pot of boiling congee placed on it.

24. The congee spilled and splashed over her body causing the scalding and burns to her.

25. The defendant’s case, differs from the plaintiff’s version only by some minor details as to distances.

26. It is the defendant’s case that the handcart was placed close to the narrow gap which allows entry into Shop 46, and although a space was left between the front of the handcart and the shop entrance to allow for a free passage into Shop 46, the handcart was close to the gap giving entry to Shop 46 because it was intended that the large pot of boiling congee be carried into Shop 46 and to be sold to customers thereafter from Shop 46.

27. It is also the defendant’s case that the plaintiff, when trying to lift up the roller shutter of Shop 53, would have been squatting near to the middle part of the roller shutter (lengthwise) outside Shop 53.

28. It is therefore submitted by the defendant that the relative positions of the plaintiff and the handcart (at the time the plaintiff was lifting up the roller shutter) ought to have been a good several feet.

29. It is the defendant’s case that the plaintiff, after pushing up the roller shutter of Shop 53, must have taken at least several steps in the direction of the handcart, but because she failed to pay sufficient attention to the presence of the handcart and the pot of boiling congee there, collided with the handcart which resulted in the accident to her.

30. The contributory negligence which the defendant relies upon was the fault of the plaintiff in failing to pay attention to the handcart and the pot of congee when she should have and could have noticed it and even though she had the opportunity of taking a few steps before colliding with it.

31. However, no witness was called by the defendant to substantiate its case on contributory negligence.  The defendant relied on defence counsel’s cross-examination of the plaintiff and on submissions as to what could possibly have happened based on the evidence given by the witness.

32. No part of the defence case which differed with the plaintiff’s own evidence was admitted by the plaintiff in cross-examination.

33. Given there are minor details which the plaintiff could not be expected to remember when cross-examined as to minor details or precise moments of something happening, I have no difficulty accepting the evidence of the plaintiff.

34. Indeed the case on contributory negligence run by the defendant depended on very precise positioning of not just the plaintiff when she was assisting in opening the metal roller shutter, but also to the precise positioning of the handcart behind the plaintiff, which allowed the defendant to say that the plaintiff must have taken several steps backward without paying sufficient attention before she could have come into contact with the handcart on which was placed the boiling congee.

35. None of those matters put to the plaintiff was accepted by her in cross-examination.

36. In the absence of any other evidence, I find that the defendant has not made out a case of contributory negligence.  Contributory negligence depends on some fault of the plaintiff.  There is simply no evidence before me upon which I could find fault on the part of the plaintiff in this case.

37. Accordingly I find the defendant to be wholly liable to the plaintiff for the accident.

Quantum

Injuries and treatment

38. Immediately after the accident, the plaintiff was taken by ambulance to the Tuen Mun Hospital where she was resuscitated and then taken to the Accident and Emergency Dept of Prince of Wales Hospital.  There she was found to have 2^nd degree superficial scald over posterior neck, back, left arm, right arm and hand, buttock, perineum and posterior thigh total about 40% 2^nd degree scald.  She was treated and admitted to the Burns Unit of the Department of Surgery.

39. The report from the Department of Surgery of Prince of Wales Hospital states that the plaintiff was transferred to them on 22 May 1999 suffering from 63% deep burns.  Five operations were needed to complete the covering of her wounds before her discharge in July 1999.  Despite active rehabilitation, her scarring resection was quite severe, incapacitating her from performing any further physical work.  Even her daily activity needed to be put under continual assistance by her family.

40. She was hospitalized for about 2 months from May to July 1999.  She started to receive occupational therapy treatment while in hospital and continued receiving same as an out-patient after her discharge.

41. During her hospitalization, bilateral foot resting splints and elbow extension splints were provided her for positioning.  Hypertrophic scars developed gradually on all the involved areas and pressure therapy started in June 1999.

42. From September 1999, the plaintiff continued to receive her occupational therapy treatment at Tuen Mun Hospital.

43. The occupational therapy report from Tuen Mun Hospital states that the initial assessment of the plaintiff conducted on 30 September 1999 showed the following :

(a)      scars over the back, dull red in colour, quite soft with mild to moderate hard near the waist in pliability, raised to 1-2 mm, experienced itchiness;

(b)     scar over the left axilla, red in colour and vascularised;

(c)     scar over bilateral upper arms and forearms, dull red in colour, moderate to hard in pliability, raised 2 mm, vascularised, itchy and painful;

(d)     scar over right wrist, red and vascularised, hard in pliability, raised 2-3 m, itchy and painful;

(e)      scar over groin area, dull red, raised 1-2 mm moderate hard in pliability, itchy;

(f)      scar of donor site, pinkish, soft in pliability and flat;

(g)     scar over bilateral thigh, deep brown in colour moderate to severe hard in pliability, raised 2-3 mm itchy and painful; and

(h)     scar over the neck, dull red raised 2 mm, moderate hard in pliability, itchy and painful.

44. To control the growth of the hypertrophic scars over the trunk, bilateral upper limbs, bilateral thigh, buttock and neck, pressure garment with padding were provided to the plaintiff.

45. After one year of treatment, there was significant improvement on the scar condition, however, the scar over the right wrist was still active and limited the wrist movement.  A further operation on the right wrist scar was done after which silicone gel was prescribed for controlling the growth of that scar.

46. Pressure garment with padding was continued for controlling the growth of the scars of other parts of the body.

47. After three years and six months of treatment, the scars were coming towards being matured.  When assessed again at Tuen Mun Hospital on 15 May 2003 the scar condition were found to be:

(a) scar over bilateral upper limbs were brownish red, yielding in pliability, raised 1 mm, still itchy;

(b) scar over the bilateral thigh and buttock were brownish yellow, yielding in pliability, raised 1 mm, itchy and dry;

(c) scar over the back and neck were matured; and

(d) plaintiff still complained of stretching of the scars over bilateral elbow and right axilla when performing elbow extension and shoulder forward flexion.

48. It was further stated in the report that the plaintiff was able to manage basic activities of daily living tasks independently, but had difficulty in lifting and cooking tasks due to increase itchiness of the scar.

Cosmetic condition and disabilities

49. The plaintiff was examined by two experts in plastic surgery, Dr Gordon Ma and Dr Chow Sik Kuen, both instructed by the plaintiff.

50. Dr Ma examined the plaintiff in July 2003.  At the time of the examination, the plaintiff’s main complaints regarding her scars were :

(1)     pulling discomfort at both elbows when she tried to straighten them.  Carrying heavy weight with her hands therefore resulted in pain across the elbow joints;

(2)     walking for over 30 minutes continuously results in stretching pain in the right thigh due to the tight scar band in the front of her right thigh;

(3)     she had difficulties squatting down due to the tight band in the front and behind her right thigh; and

(4)     she had irritations in the form of pain and itchiness from the scars which was significantly worse in hot and humid environment.  She had to frequently apply lubricating cream to alleviate the discomfort.

51. The report of Dr Ma illustrated with a number of photographs showing the tight bands of the hypertrophic scars especially those on her right thigh.

52. After examining the plaintiff, Dr Ma came to the view that the permanent unsightly scars over her back, lower abdomen, both upper limbs and both lower limbs gave her pain and irritation especially in hot weather.  They also affected her normal limb movements such as full extension of elbows and squatting.

53. Dr Ma estimated cosmetic disabilities from the scars to be 30% impairment and functional disabilities were estimated at 11%.

54. Dr Ma recommended further surgical intervention to improve the functional disabilities aimed at releasing the contractures of both elbows and the right thigh.  The cost of such further surgery was estimated by Dr Ma to be $90,000.  In Dr Ma’s opinion, the functional disabilities could be improved from his 11% impairment estimate to as high as 4% impairment.

55. Dr Chow examined the plaintiff in January 2004 and gave a report dated 6 February 2004.

56. At the time she was examined by Dr Chow, the complaints of the plaintiff were very much the same as the complaints she had when examined by Dr Ma in July 2003.

57. Dr Chow, concentrating more on the cosmetic aspects of the plaintiff’s scars (as opposed to the functional aspects), gave his opinion that the scars are very obvious and impossible to remove but it would be reasonable to aim at improving their appearance so as to make them cosmetically more acceptable to alleviate her psychological stress.

58. He agreed that the tight scars on the limbs should also be released to allow for better mobility.  Most of the scars are hypertrophic, painful and itchy, hyperpigmented, raised, hard and thick.  They are also contracted unlike normal skin which is flexible and elastic.  They cause limitation in joint movement such as her failure to fully extend her elbows.  The constricting bands of the scars around the thighs also restrict her actions of the thigh muscles preventing her from fully squatting.  In this respect he agrees with the proposal of Dr Ma in releasing the scars of both elbows and the right thigh by surgical operation.  The estimate of $90,000 for such surgery is a fair estimate.

59. The scars can further be improved by intralesional injection of steroid to soften and thin the scar tissue which will also alleviate the constricting band.

60. Dr Chow recommends for each hypertrophic scar eight to ten sessions of steroid injections at intervals of three to six weeks.  Totally there will need to be about 52 sessions.  The estimated costs for the steroid injections as recommended comes to $104,000 at $2,000 per session

61. Dr Chow also recommends laser treatment aimed at lightening the deep pigmentation of the scars.  The plaintiff will need 8 to 10 sessions of laser treatment at intervals of four to six weeks.  The cost of such laser treatment recommended by Dr Chow is estimated to be $537,000 (the breakdown of that total sum is given in his report).

62. Dr Chow assessed the plaintiff to have 15% impairment of the whole person in relation to the scarring she had suffered.

63. Dr Otto Au, an expert in plastic surgery instructed by the defendant, examined the plaintiff in September 2001 and gave a report.  It would appear that the report was incorrectly dated to be 9 April 2001 when it should have properly been dated 9 April 2002.  That error could be gathered from the contents of Dr Au’s report which referred to being supplied with an ECC Application dated 11 May 2001 and also when his subsequent report given a matter of days after the initial report was dated 12 April 2002.

64. In his report, Dr Au accepts that the plaintiff suffered extensive scar deformities over a large area of her body including neck, chest, trunk, both upper extremities and lower extremities and her buttocks as a direct result of the accident.

65. He further states that the scars show much pigmentation and hypertrophic changes in large areas, notably over her back, upper extremities, her thighs and right buttock.  There has been little improvement of her scar deformities in terms of pigmentation and hypertrophic changes although it has been two and a half years since the accident and the deformities which still persist make it extremely doubtful as to whether any substantial improvement can now be expected.

66. Dr Au assessed the total cosmetic disability to be 25% of the whole person.

67. Dr Au takes the view that there is no practical treatment for the plaintiff’s scars of such large extent.

68. However, he does recommend palliative treatment in the form of skin ointment to relieve itchiness and/or steroid injection to some isolated areas of the hypertrophic scars should they cause much distress.  Moreover, laser treatment may also be considered for the same problem.

69. Dr Au’s estimate of cost comes to $62,100 which includes the ointment, steroid injection of 24 times, doctor’s visits about 24 times, and laser treatment for five sessions.

70. Dr Au followed up with a further report dated 18 June 2004 commenting on the experts reports by the plaintiff’s experts.  In that further report, he takes the view that there it is impractical for a scar release operation for the plaintiff’s right thigh since the band is too wide such that anything short of a complete excision and skin graft will yield too little benefit.  A skin graft operation is also not advisable since it might produce more painful hypertrophic scars on both the operating site and donor site.

71. Dr Au was also of the view that for her elbow, such a release operation is also not practical because the plaintiff’s elbow can extend as much as 170^o and it is not practical to extend only 10 ^o (full extension of the elbow being 180^o).

72. Instead Dr Au advocates the steroid injection citing again his own estimated charges but refusing to comment on Dr Chow’s charges for same, but stating that the treatment with steroid injection will take about two years to complete and unusual to extend such treatment forever.

Psychological condition and disability

73. In so far as the psychological condition of the plaintiff is concerned, she was examined by Professor Peter Lee (plaintiff’s own expert) and also by Dr Calais Chan (defendant’s expert).

74. There is little or no differences between the opinions expressed by the two experts as regards her psychological condition.

75. Both experts are agreed that she suffers from an adjustment disorder with mixed anxiety and depressive mood.  They are also agreed that she has developed fears and avoidance of heat as well as isolated symptoms in the form of nightmares or other reminders of her accident.

76. Dr Chan in fact states that her clinical profile is predominantly characterized by significant worries and ruminations about the negative impact of her injury and permanent scars on various aspects, including her personal well-being, prospects of work and future living, as well as deteriorated relationship with her husband.  She has also shown a loss of self esteem and confidence, is self conscious about her conspicuous scar injury, lacks initiative in interacting with people and tends to avoid going out of her home for fears of social embarrassment.

77. Both experts recommend psychological therapy for the plaintiff to help her with her psychological problems.

78. Professor Lee recommends a course of 20 sessions costing $1,500 per session if given in the private sector.

79. Dr Chan recommends 12 bi-weekly intensive sessions in the first six months followed by six monthly maintenance session of a period of one year.  It would appear therefore this comes to totally 24 sessions over one and a half year.  The cost estimated by Dr Chan is also at $1,500 per session.

80. There is also a further report in this respect from the plaintiff’s treating doctor, Dr Frendi Li, who treated the plaintiff from December 2004 to July 2005 for 18 sessions.

81. In so far as the plaintiff’s psychological condition is concerned, what Dr Li says is no different from both psychology experts, Professor Lee and Dr Chan, namely that the plaintiff has chronic PTSD and secondary mood and adjustment problems.  However, she has made good improvement on the PTSD symptoms, is able to go out and about without much worry, has resumed some cooking chores and has a more active lifestyle.

82. However, there is one aspect of the plaintiff’s psychological condition which is not covered by either expert which Dr Li deals with in these words :

“54   According to my clinical observation, [the plaintiff’s] recurring concern that any treatment progress would compromise her compensation was NOT out of greed, but of a sense of injustice.  She is not a psychologically-minded lady.  It would be incomprehensible to her to think that she was to feel better at the expense of monetary compensation.  Moreover, according to her rather rigid line of reasoning, improving means letting go of the trauma, which, to her, means forgiving “Ah Sing”, which means injustice.  It did not help that the relatives around her seemed to have been reinforcing her idea about the compensation mechanism.

55.    I am therefore of the opinion that this concern does not shed any bad light upon her character and integrity, but is merely the result of her upbringing and personality.

56.    Her resistance towards working through the unresolved feelings was again not intentional.  She has always coped with strong feelings by ignoring or suppressing them.  I believe the Pandora box of unresolved feelings resulting from the trauma and its aftermaths, including the breakdown of the marital relationship, was too much for [the plaintiff] to handle psychologically.  At present, she honestly believes that she could never come to terms with what happened.  Moreover, she does not have enough social support to contemplate this process.”

83. Therefore although there has been some improvement after seven months of treatment, Dr Li concludes that in theory it would be desirable if the plaintiff could come to terms with the trauma to a larger extent.  However, this would have to wait until she was ready, and would not happen before the lawsuit was settled.

Pain, suffering and loss of amenities

84. I do not propose to repeat the injuries and disabilities of the plaintiff which have been dealt with above.

85. There is little or no disagreement between the experts as to her injuries and disabilities.  Their disagreement only goes to what further treatment there should be and the cost of it.

86. However, apart from the physical and psychological injuries and disabilities suffered by the plaintiff from this accident, her injuries and disfigurement has also directly resulted in the breakdown of her marriage with her husband effectively having deserted her.  It has also caused her son to estrange himself from her.  Only her daughter has remained loyal to her after the accident.

87. A large part of the dispute between the parties as to the award of pain, suffering and loss of amenities is their disagreement as to whether the case of this plaintiff should be categorized as being under the “Gross Disability” category (as suggested by counsel for the plaintiff) of injuries as understood in the case of Lee Ting Lam or whether it should come under the “Substantial Injury” category.

88. In my view it would be unreal to try to categorize this case in the way suggested by the parties.  Those categories in Lee Ting Lam were made for guideline purposes, not as straitjackets.  In a case like the present, where a substantial and a large part of the plaintiff’s loss of amenities come in the form of the breakdown of her marriage because of the injuries and disfigurement that she had suffered as well as being estranged from her son, it is well nigh impossible to have to categorize such in one of the categories laid down in Lee Ting Lam because those categories were not designed to take account of such loss of amenities.  However, this kind of loss of amenities will have to be taken into consideration in assessing the award for pain suffering and loss of amenities.

89. Taking into account all her injuries and disfigurement (the scar of which can readily be seen from the photographs attached to the various reports of the experts on cosmetic and plastic surgery) as well as her loss due to the breakdown of her marriage and the estrangement of her son from her, a reasonable amount to compensate the plaintiff for pain, suffering and loss of amenities would be $800,000.00

Pre-trial loss and expenses

(a)     Pre-trial loss of earnings

90. There is no dispute that the plaintiff was earning $6,300 working for the defendant before the accident.

91. There is evidence before me that the plaintiff also give tutorials to some seven children, each paying her $500 per month before the accident.  Indeed after her accident, and after her discharge from hospital, the plaintiff had tried to resume giving tutorial lessons to children, but found that she could not continue with it after trying it out for about a month.

92. There is also some dispute as to whether the plaintiff continued with tutorials to children for the whole 12 months in a year, as claimed by the plaintiff, or whether as seems to be suggested by one of the mother of one such child (PW1) the children only come to the plaintiff for tutorials during term time but not in the summer holidays.

93. In my view, I would take a common sense approach in that it would likely differ from case to case with individual child whether the parents would wish that child to continue with tutorials during the summer holidays.  Therefore it may well be that there will be some fewer children coming to the plaintiff for tutorials during the summer holidays than during term time.

94. In this respect, the evidence did not show that the plaintiff had at any time more than seven children for tutorial in any given month.  That would probably suggest that seven children was about the maximum that the plaintiff could handle given that she had a full time job as well with the defendant before her accident.

95. In so far as her earnings from giving tutorial goes, she would be earning an extra $3,500 in those months where she has a full complement of students attending for tutorials.  Giving effect to the possibility that for the pre-trial period she may not always have as many as seven children coming for tutorials and the fact that there may be even less during the summer holidays, I will take a median of $2,500 as her loss of earnings from such tutorials during the pre-trial period.

96. The accident happened about 18.33 months before MPF came into force and in calculating the pre-trial loss of earnings, I will have to differentiate between the time before MPF was introduced and after it came into force.

97. The pre-trial period being 83 months, the pre-trial loss of earnings therefore comes to :

($6,300 x 18.33) + ($6,300 x 105% x 64.67) + ($2,500 x 83) = $750,771.

(b)     Special damages

98. Three items of claim has been agreed between the parties.  Firstly, the medical fees and travelling for treatment has been agreed at $28,532.  Secondly, the cost of the ointment are agreed at $15,583.  Thirdly the damaged clothing agreed at $100.

99. In dispute between the parties are tonic and nourishing food and also extra cost of traveling by taxi.  The plaintiff has abandoned her claim for extra air conditioning, although that was claimed in the pleadings.

100. For tonic and nourishing food, the plaintiff claims $62,530.  The defendants are only prepared to concede $8,000.

101. The claim for tonic and nourishing food are supported by receipts but that fact alone does not make the claim reasonable.

102. The objection taken by the defendant is that there is no evidence that such nourishing food was ever recommended medically and no evidence of its benefits.

103. Accepting that she has spent that amount on nourishing food, but also giving effect to the objection of the defendant, I am prepared to allow $30,000 for tonic and nourishing food for the pre-trial period.

104. The plaintiff also claims $8,100 being the extra costs of traveling by taxis for the pre-trial period at $100 per month.  This claim is unrelated to the traveling needed for attending medical treatments, follow-up and medical consultation.  Rather this claim arises from the fact that because of her burns scar and the fact that she had to wear a pressure garment for much of the pre-trial period, it became inconvenient for the plaintiff to travel on public transport thus necessitating her taking a taxi which she would not have done otherwise.

105. The plaintiff stopped wearing her pressure garment in about September 2004, over five years after the accident.  Taking that into account and the fact that in the early stages of the pre-trial period, it is the plaintiff’s own case that she stayed home most of the time refusing to go out or to socialize with people, I would allow $6,000 for this claim.

106. Total special damages therefore comes to $80,215.

(c)     Loss of housekeeping ability

107. There is a claim by the plaintiff for $268,275 being her loss of housekeeping ability.

108. The claim is put on the basis that with the plaintiff’s physical disabilities after the accident she had also lost her ability to do the housework during the pre-trial period.

109. That amount of the claim is calculated on the basis of her losing her ability to do housework for two hours each day for the first five and a half years after the accident, and for one hour per day for the latter one and a quarter years.

110. It is however common ground that the plaintiff had never employed anyone, whether part time or otherwise to do the housework for her during the pre-trial period.

111. Based on the principle of law laid down in Daly v. General Steam Navigation Co. [1981] 1 WLR 120, the plaintiff cannot claim on such a basis since she had not paid for extra help during the pre-trial period.  That is a loss which has been taken into consideration and included as part of general damages to her being her loss of amenities.

112. For that reason the amount claimed under this head is not allowed.

(d)     Costs of care by daughter

113. There is also a claim for the cost of the plaintiff being cared for by her daughter during the pre-trial period.

114. Under this head of claim, I will need to distinguish between time spent by the daughter in caring for the plaintiff which is recoverable, and time spent by the daughter doing the housework for which the plaintiff could not do, which is not recoverable.

115. I also need to keep in mind that this is not a claim by the daughter for loss of earnings, since there is no evidence that the daughter did suffer any loss of earnings during the pre-trial period when taking care of her mother, the plaintiff.

116. Under this head, the plaintiff claims $319,010 based on 5,317 hours said to have been spent by the daughter caring for the mother at the rate of $60 per hour which is based on the commercial rate for a maid.  (The rate was pleaded at $50 per hour, but at trial counsel for the plaintiff based it on $60 due to purported increase in salary since the time of pleading.)  The 5,317 hours was worked out as being 17 hours per week for the first five and a half years after the accident and seven hours per week for the remaining one and a quarter years.

117. I accept the defendant’s submission that it would be wrong to use the commercial rate in assessing the cost of the daughter’s care.

118. The defendant is prepared to concede the amount of $67,200 as compensation under this head of claim for the reasons stated in the final submission of defence counsel.  I accept those reasons advanced and that $67,200 is a reasonable sum to assess under this head of claim.

119. $67,200 will accordingly be assessed as reasonable compensation for the daughter’s care of the plaintiff in the pre-trial period.

Future expenses

(a)       Future loss of earnings

120. The plaintiff is now (at trial) aged 54.

121. I accept that with her injuries and condition, it is unlikely that she will be able to return to her full time pre-accident job with the defendant or a job similar to it.

122. However, there is no good reason for her not to be able to resume giving some tutorial lessons to children (now that she has stopped wearing the pressure garment), perhaps after the further treatment, both cosmetic and psychological.  I accept that if she were to restart tutorial lessons, it will likely be done gradually and not immediately after this case has been determined.

123. I would therefore use a multiplicand of $7,000 which is slightly above the pre-accident earnings of the plaintiff in her job with the defendant to take into account the gradual resumption of tutorial lessons after the further treatment.  That multiplicand will also include the loss of MPF.

124. As for the multiplier, in view of her age, I shall adopt a multiplier of 6.

125. The amount of future loss of earnings assessed comes to $7,000 x 12 x 6 which gives $504,000.

(b)     Future medical expenses

         (i)      Psychological treatment

126. The cost of future psychological treatment at $15,000 are agreed between the parties and the same will be allowed.

         (ii)     Plastic and cosmetic surgery

127. There is a claim by the plaintiff for the cost of steroid injection recommended by Dr Chow and estimated at $104,000 by him; secondly for the laser treatment estimated at $537,000 as recommended also by Dr Chow; and thirdly for the cost of surgical operation estimated at $90,000 as recommended by Dr Ma.

128. The defendant are prepared to accede to only $62,100 being all inclusive of all future treatment which Dr Au recommends for the plaintiff including ointment, steroid injection treatment as well as laser treatment (by IPL machine) and also consultations.

129. I am prepared to allow the plaintiff only the $104,000 recommended by Dr Chow as being the costs of steroid injection treatment for the following reasons.

130. Dr Ma’s recommendation for surgical operation (at estimated cost of $90,000) was aimed at improving the functional disability of the plaintiff caused by the constricting bands of her scars which, due to their tightness, limits her movement in both the upper limbs as well as her right thigh.

131. On the other hand, Dr Chow recommendation of steroid injection treatment (at estimated cost of $104,000) was also aimed at improving her functional disability caused also by the tightness of the constricting bands in her scars.

132. Since both these recommendations by the two experts were aimed at alleviating the same disability caused by the same problem, namely the tightness due to the constricting bands in her scars, it is only reasonable that the plaintiff can claim the cost of either one or the other of the recommended method of treatment, but not both.

133. In this case, surgical intervention recommended by Dr Ma may not be attractive to the plaintiff since she had already undergone five operations when in hospital in respect of her scars.

134. Although the cost of the steroid injection is slightly more expensive than the cost of the surgical operation recommended by Dr Ma, it may well be more acceptable to the plaintiff not to have to go through yet a further operation again.

135. Moreover, treatment by steroid injection was also suggested by the defendant’s expert, Dr Au, but who was against the surgical operation advocated by Dr Ma for the reasons given by him.

136. I also note that Dr Au, in suggesting steroid injection treatment for this plaintiff, had given as his estimate the cost of the steroid injection treatment suggested by him to be $19,200 (24 x $800 each time).  However, it is also clear from Dr Au’s report that the steroid injection treatment suggested by him was as a means of palliative treatment to isolated areas of the hypertrophic scars “should they cause much distress”.  What was suggested by Dr Au was therefore different in nature to what was suggested by Dr Chow, being a method of treatment to improve the functional disability of the plaintiff by softening the tightness caused by the constricting bands in her scars.

137. For these reasons, I prefer the recommended treatment at the estimated cost given by Dr Chow as against that which was recommended by Dr Au.

138. As for the laser treatment recommended by Dr Chow, I note firstly that such recommended treatment was aimed at lightening the deep pigmentation of the plaintiff’s scars.  Whilst it is true that she has scars over 60% of her body, most if not all of these scars are at such parts of the plaintiff’s body which can be covered up by long sleeves tops and trousers.

139. Moreover, the recommended laser treatment is aimed at making the appearance of the scars to be less unsightly, without any functional benefit.

140. I have also noted that in one of the Medical Reports from Dr L.N. Wong of the Division of Plastic and Reconstructive Surgery of the Prince of Wales Hospital which report was dated 30 July 2003, it is stated therein that “Combined laser and kenalog therapy was given for scar treatment but was not successful.”

141. In the light of all the above, I am far from being convinced or even persuaded that it would be of any great benefit for the plaintiff to undergo laser treatment which is estimated at the not insubstantial amount of $537,000.  Accordingly, I hold that the claim for this amount not to be reasonable despite it having been recommended by Dr Chow.

142. Total future medical expenses therefore comes to $119,000.

(c)     Future travelling expenses

143. There are two separate claims for future travelling.  One for travelling for future medical treatment and the other for travelling by occasional taxi.

144. For the future travelling for medical treatment, I will allow an amount of $2,000.

145. As for the second claim for the occasional taxi, for which the plaintiff claims $30,000, I do not consider that claim to be reasonable in view of the fact that she had already stopped wearing the pressure garment since September 2004.  Accordingly that claim is refused.

(d)     Future tonic food

146. There is also a claim for future tonic food in the sum of $160,000.

147. While the courts have for a long time recognized such claims for the pre-trial period by way of special damages and approach such claims in a common sense and pragmatic way, it is unusual to say the least for such claims to be made as future expenses.

148. In any event in the present case this claim for future tonic food has no evidential basis to it in that none of the medical experts have recommended tonic food for the plaintiff.  Besides the amount sought is quite unreasonable.

149. Accordingly, this head of claim is disallowed.

(e)     Future extra air conditioning

150. The plaintiff also claims $20,000 being future extra air conditioning charges based on $1,000 per year.

151. I accept that the plaintiff’s scar will be permanent.  However, she will only require extra air conditioning during the hotter months of the year.

152. On that basis, $800 per year should be sufficient to meet the extra cost of air conditioning.

153. Taking into account accelerated receipt, this being a claim for future expenses, I will use a multiplier of 10 and accordingly allow this claim assessed at $8,000.

(f)      Loss of housekeeping ability

154. The plaintiff claims $219,000 under this head of claim.  That amount is calculated on the basis of claiming loss of one hour’s housekeeping ability each day at the rate of $60 per hour and using a multiplier of 10.

155. The defendant on the other hand is prepared to concede the sum of $48,000 under this head of claim on the basis of four hours each week therefore amounting to $800 per month and applying a multiplier of 5 since as the plaintiff advance in age, she would not have been able to manage the heavier household duties in any event.

156. In view of the opinion expressed by the plaintiff’s treating doctor, Dr Frendi Li that the plaintiff has been making progress from her psychological condition during the time she was treated by Dr Li, and in view of the costs assessed for her further treatment, both psychological as well as cosmetic-surgery wise, I am of the view that the amount of $48,000 offered by the defendant under this head of claim is a reasonable amount.

157. Accordingly, $48,000 will be assessed for this head of claim.

(g)     Loss of society

158. The claim under this head is put on the basis of the plaintiff’s husband losing out on the consortium and sexual services of the plaintiff.  The claim is brought under section 20C(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap.23.

159. There can be no doubt that the plaintiff comes within the first limb of section 20C(1) and that her husband, who has suffered the loss of her society, comes within the ambit of the second limb being identified under sub-paragraph (a) thereof.

160. By sub-section (2) of section 20C which makes reference to section 4(3) of the Fatal Accidents Ordinance, Cap.22, damages for loss of society under section 20C(1) of Cap.23 is limited to $150,000 in this case.

161. What I have to consider is the proper amount to be awarded bearing in mind the ceiling figure of $S150,000 imposed by statute.

162. In this connection the plaintiff’s evidence as to how her husband behaved towards her after the accident is contained in paragraph 23 of her witness statement which was adopted as her evidence in chief.  I repeat that part of her evidence which is as follows :

“23.        This accident has caused tremendous problem to my marriage.  Before the accident, my husband who worked as a hospital odd-jobber, earned $9,600 per month and gave me $6,000 as household expenses.  (He) was very good to me and returned home every evening to have dinner and sleep.  Since I had all along been working full time after marriage, my husband had always helped in all sorts of household chores, including washing up dishes, sweeping the floor and cleaning the furniture, the only thing was he could not cook meals.  We had also gone to China for touring many times, and during the May 1^st Labour Day just prior to the accident, I, my husband, my mother and my elder sister all went on a tour to Beijing.  Despite having married many years ago, we still had sex twice a week.  But after the accident, until now, my husband has not given me any household expenses.  (He) has only been paying the rent for the government housing.  Also he has never returned home for dinner, and stayed away from home for 3 or 4 nights a week.  I had only had sex with him once soon after my discharge from hospital, and even if he returned home he seldom talked to me.  When he did talk, due to his extremely poor attitude, I would quarrel with him after a short while.  Since the accident he would often go to the mainland for up to 8 or 10 days and not return home.  Our marriage has come to a virtual end, and this has caused me immense distress and I feel very depressed.”

163. Given that evidence, the plaintiff’s loss in so far as the virtual breakup of her marriage is concerned has already been taken into consideration in assessing the award for pain suffering and loss of amenities.

164. Whilst accepting that the assessment for pain suffering and loss of amenities is focused on the loss to the plaintiff, inter alia, the breakup of the marriage, which is different from viewing the matter from the perspective of the husband for the loss of the plaintiff’s society to him, nevertheless, they must, in my view, be both sides of the same coin.

165. Perhaps another way of putting it is that since the husband has adopted such an attitude and practically deserted the plaintiff, his loss of her society cannot by any yardstick be any great loss to him.

166. For these reasons, I would assess the loss of society to the plaintiff’s husband at $10,000.

Interest

167. Interests will be awarded at the rate of 2% p.a. for general damages from the date of the Writ.

168. Interests for all specials and pre-trial damages will be awarded at half judgment rate (5.044%) from the date of the accident.

169. However, in so far as the period for the award of interests goes, I am prepared to accede to the submission by the defendant for limiting it to three years in the case of general damages and five years for special damages in view of the fact that this case has taken almost four years since the Writ was issued to come on for trial and it has been almost seven years since the accident occurred.  The delay in this case coming to trial can be attributed to the plaintiff, in particular the way that the plaintiff has gone about obtaining expert reports.

Summary of Claims

170.   (a)	PSLA	$800,000
	Interest thereon	$48,000
(b)	Pre-trial Damages
	Loss of earnings	$750,771
	Special damages	80,215
	Cost of care of daughter	67,200
	Interest thereon	226,525
(c)	Future Damages
	Loss of earnings	504,000
	Medical expenses	119,000
	Travelling expenses	2,000
	Extra air conditioning charges	8,000
	Loss of housekeeping ability	48,000
	Loss of society	10,000
Sub-total :		$2,663,711

171. From this sub-total amount will have to be deducted the amount of Employee’s Compensation payment received by the plaintiff on 13 March 2004 and also the Interim Payment in the amount of $300,000 paid to the plaintiff.  The interests relating to these two payments already received by the plaintiff will also have to be deducted from the interests awarded on the Special Damages.

Sub-total as per above	$2,663,711
Less :   ECC payment	378,923
Interest thereon	40,615
Interim payment	300,000
Interest thereon	37,830
Total :	$1,906, 343

Conclusion

172. There will be final judgment to the plaintiff in the amount of $1,906,343.

Costs

173. There will be a costs order nisi that the defendant pays the plaintiff her costs of this action, to be taxed if not agreed, save that the costs of the plaintiff's Reply to the Defendant’s Answer to the 2^nd Revised Statement of Damages will not be allowed.

174. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.