LI SOO YEE v. HO TAK CHEUNG AND OTHERS

1982 No.A11720

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. The plaintiff sues for damages resulting from a motor accident on the morning of 4th April 1981, when she was 26 years old. She was then and is now unmarried and employed by the Hong Kong Bank as a terminal controller.

2. The accident occurred after a collision in Argyle Street, when one of the two vehicles involved mounted the pavement and ran down the plaintiff. She was admitted to Queen Elizabeth Hospital where she remained for 85 days until her discharge on 27th June 1981. She was later admitted to Princess Margaret Hospital on 6th November 1981 for plastic surgery and was discharged a week later.

3. Hearsay notices were served in respect of medical reports, reports from plaintiff's employer, and receipts for her expenditure arising from the accident; these were duly admitted. Oral evidence was given by the plaintiff herself, by two branch managers under whom she had worked, and by Dr. Ian Nicholson who has performed extensive cosmetic surgery on the plaintiff.

4. Handed in and admitted without objection was Dr. Nicholson's most recent report on the plaintiff of 9th May 1986, which he discussed at length in his oral evidence. That report was supplemented by colour photographs of her scarring sustained as a result of the accident, which were also admitted without objection.

5. The amended statement of claim set out the revised particulars of plaintiff's injuries all of which are supported by the medical reports; they are :

6. The plaintiff has undergone extensive surgery as well as physiotherapy. Apart from the initial cosmetic surgery in the Princess Margaret Hospital in November 1981, Dr. Ian Nicholson operated several times. I understand from Dr. Wedderburn's report of 27th April 1982 that private surgery was needed as the Princess Margaret Hospital was unable to undertake further cosmetic treatment. In any event plaintiff's special damages including private medical attention, as set out in schedule III to her particulars of damage, have been agreed at $40,000.00.

7. Since the accident the plaintiff's operations and treatment have been :

8. I now turn to the reports of the various doctors and the evidence of Dr. Nicholson.

9. Dr. William Yuen was the consultant Orthopaedic Surgeon at Queen Elizabeth Hospital who first treated plaintiff in 1981 and later treated her privately in 1984. I note in particular from his report of 11th January 1985 that the pelvic fractures cannot be reduced, although traction may minimise the pain and plaintiff has responded well to other physiotherapy treatment. The material parts of the report read:

10. Dr. Yuen declined to be adamant that plaintiff could only have childbirth by Caesarian section, but assessed the chances of this as very high.

11. Dr. Wedderburn's first report of 27th April 1982 discusses fully both the injuries and the scarring and confirms Dr. Yuen's assessment of the pelvic injuries. I particularly note from this report the keloidal nature of the scars on both legs. In regard to those scars Dr. Nicholson in his second report of 9th May 1986 comments:

"The leg scars have improved a little over the past 19 months, but will always remain as a conspicuous cosmetic disability. Plastic surgery can only slightly lessen the cosmetic disability."

12. Dr. Wedderburn in his second report of 9th May 1985 concludes that the plaintiff, from her leg impairment plus the fractures of the pelvis with residuals, has 11% impairment of the whole man. He also draws attention to her cosmetic impairment, her diminished marriage prospects and what he assesses as the necessity of Caesarian section in the event of pregnancy. On the question of future pain he says :-

"I think it is likely that an average course of physiotherapy 3 times a week for about 3-4 weeks annually would benefit her. This would cost approximately $800 - $1,000 per annum. I also consider that she will not have increase in pain and discomfort except occasionally which would respond to physiotherapy."

13. Dr. Nicholson expanded in his evidence on his two reports of 11th May 1984 and 9th May 1986. He drew attention to the scars on plaintiff's face and I noted that they are still visible and remain a considerable cosmetic impairment despite the surgery.

14. In discussing Dr. Wedderburn's 1982 report, Dr. Nicholson considers the other doctor's conclusions optimistic :-

"On page 2, at the bottom of the large paragraph, the Dr. is optimistic. Scars can never become invisible. Plaintiff has reached her maximum improvement. There was no swelling of the cheek; rather a deformity from a fracture.

        On page 3 of Dr. Wedderburn's report, paragraph 3, I comment that a keloid never disappears - it always leaves a noticeable mark. Skin - grafting is not a desirable solution. The pigmentation now appears to be a permanent feature."

15. Earlier in his evidence Dr. Nicholson considered the meaning and effect of "keloidal" scarring in saying :-

""Keloidal" means a scar which is red, raised and thickened through over-healing and may carry on the over-healing process and become worse over years - speaking cosmetically only in this case. The keloidal factor has now terminated in this plaintiff's case - it may get better over a long period - perhaps a few years. She has here reached near her maximum improvement." (my emphasis.)

16. Continuing his evidence, after describing the operations on plaintiff, Dr. Nicholson said :-

"I refer to my second report of 9th May 1936; on page 2 I list her cosmetic complaints which are the same as two years before. The scars are better but all there. It is impossible to eradicate them completely and if one is self-conscious they will be magnified."

17. I am bound to accept Dr. Nicholson's evidence that the plaintiff has severe cosmetic impairment. Dr. Wedderburn assessed it at 10%, but I agree with Dr. Nicholson that it is impossible to assess cosmetic disability as a percentage. It is however clear from the evidence and the photographs that the scarring is permanent, ugly and, calculated to affect adversely the plaintiff's lifestyle. I also observed from plaintiff's demeanour that she seems a quiet and withdrawn person; the inference from Dr. Nicholson's concluding comment above is that such a person would be more affected emotionally by the scarring. I accept that and weigh it in the balance.

18. It is not easy to calculate diminution of marriage prospects, much less to translate such diminution into monetary compensation. I do accept however that the plaintiff's injuries and the protracted treatment of them must have had a materially detrimental effect on her prospects of marriage, both since the accident and prospectively.

19. In her own evidence the plaintiff described her pain, which started at the orthopaedic unit two days after the accident, as "agony" when she tried to move on the bed. She said she had the pain for a long time and that it related to the pelvis. She said she had difficulty walking when first discharged. I accept this evidence.

20. The plaintiff described herself as being "deeply upset" when she realised she had facial injuries and a changed appearance. She said she was also worried about the scars on her legs.

21. She said she wore "pressure pants" for the leg scarring for 2½ years which caused her discomfort when it was hot. She said she felt embarrassed at her change of appearance when she dealt with customers. I accept her evidence on all these points.

22. She went on to refer to back pain, as a result of which she went to Dr. Yuen in 1984. She said this occurred several days a week and would last almost the whole day.

23. Defence counsel drew my attention to the lack of medical evidence that plaintiff's back pains are currently as severe as she claims. He also pointed out that there was equally no medical evidence that her back condition had worsened since she last saw Dr. Yuen towards the end of 1984.

24. I note that Dr. Yuen does indicate that the plaintiff - "will have low back pain in the future." The 4th paragraph of Dr Wedderburn's second report is also consistent with her complaints in evidence.

25. The plaintiff gave her evidence well and I do not find any exaggeration of her low back pain. Equally I find no discrepancy between her evidence and the probabilities discussed in the medical reports.  I do note that physiotherapy has produced considerable relief in the past and is likely to do so in the future. I also note from the quoted passage in Dr. Wedderburn's second report that he considers plaintiff will have no more than an occasional increase in pain in future, which would respond to physiotherapy. Bearing all this in mind I consider plaintiff's low back pain on the basis that it will remains as she now describes it and that physiotherapy will be needed for relief for an indefinite period.

26. The remainder of plaintiff's evidence dealt with her loss of promotion prospects which I will consider separately.

27. Plaintiff's counsel drew my attention in particular to the case of Li Chim Ying v. Lam Siu Nam and Another (H.C.  3527 of 1984).  There are several similarities in the two cases; both plaintiffs were young women injured in serious road accidents; both received severe pelvic injuries; both suffered ugly keloidal scarring.

28. Dr. Nicholson treated Li Chim Ying as well as the present plaintiff and was asked to consider the photographs of scarring in that case as well; these were admitted by consent. The doctor's opinion was that the many keloidal scare in this case were much more extensive and conspicuous. He concluded that -

"cosmetically this present case is much more serious than the one to which I am now directed."  An opinion which I am bound to accept from the relative appearances of the scarring.

29. In considering the various reports and evidence I find that plaintiff has suffered severe facial and leg scarring which will not noticeably improve.  She has undergone a total of eight operations over a period of 3½ years and will require a further one to improve her present nasal obstruction. She has undergone traction and other physiotherapeutic treatment. She has had severe pain and continues to have low back pain which will require further physiotherapy for an indefinite period.

30. The accident occurred when plaintiff was at a prime marriageable age. Despite her lack of intention to marry at that time, she cannot fail to have suffered a reduction in marriage prospects. I also take into account the loss of the opportunity for natural childbirth, which I accept to be the case, and which also calls for compensation.

31. I bear in mind awards in similar cases,  in particular that of Li Chim Ying, where the impairment of the whole man was assessed at 6% as apposed to 11% for the plaintiff.

32. Taking into account all these factors, save for the scarring, I award the plaintiff $160,000.00 for pain, suffering and lossof amenities.

33. For the cosmetic injuries I was urged by plaintiff's counsel to make a separate award. He drew my attention to Li Chim Ying's case where $80,000.00 was awarded for scarring of a notably lesser gravity. The scars in the present case are more serious both in number and in the fact that several are facial scars. Defence counsel did not dispute that a separate assessment may be justified in a case of severe scarring, nor that this case fell into that category. He did however argue that the award in Li Chim Ying was high and should not be used as a starting point.

34. I accept the principle that a separate assessment may be made in respect of conspicuous ugly scarring.  In the case of Kwan Lai Hing (H.C. 7865 of 1983) this principle was affirmed although not applied as the scarring itself did not warrant it.

35. In the present case I am satisfied that the scarring does merit a separate award. I agree with defence counsel that Li Chim Ying should not be treated as a starting point, but I cannot ignore the greater gravity of the plaintiff's scarring. Accordingly I award her $100,000.00 for cosmetic impairment.

36. I turn to the question of loss of earnings, both past and future. I was urged by counsel to adopt a multiplier/multiplicand approach to this assessment on the basis that plaintiff's loss can readily be quantified.

37. Counsel's argument is based on two offers to plaintiff of nomination for promotion to the post of training instructor. I note that these offers, in December 1984 and February 1985, were not offers of promotion itself but merely offers that her name should go forward for consideration. Evidence showed that thereafter there would have been a selection based on an interview. It was by no means automatic, nor even probable, that promotion would follow a nomination; indeed several names went forward on one of the two occasions and none was selected.

38. Be that as it may, plaintiff declined to let her name go forward, claiming that the post in question involved standing for long periods and walking around the premises. Counsel's suggested multiplicand is based on the median difference between her earnings in her present post and those in the post he is assuming she would have achieved.

39. I find that plaintiff is highly regarded by her employers. This appears from the evidence of the two branch managers. She may well have achieved the promotion she was asked to seek. The fact remains that she did not even seek that promotion.

40. There are furthermore other avenues of promotion open to plaintiff and I note in particular that the more recent of the two branch managers in charge of plaintiff graded her promotion readiness as "immediate". This manager, Mr. Victor Wu, in reply to cross-examination said -

"in my report I mentioned 'promotion could be considered as soon as there is a suitable vacancy'. Yes, for any promotion in relation to her work." (my emphasis.)

41. I assume that there are many senior posts in the structure of the Hong Kong Bank where the work is of a sedentary nature. I am also assuming that it is likely from her employer's regard for the plaintiff that she will before long achieve promotion at least to the level of the job for which she declined the nomination. To that extent her own high qualities militate against a large award for loss of earnings. I am also reluctant to make either assumption invited of me, firstly that plaintiff would probably have achieved promotion when nominated; secondly that she was justified in refusing even the nomination and entitled to claim for loss of earnings as a result. I find in these arguments an unattractive proliferation of uncertainty.

42. In plaintiff's refusal to be nominated I also detect arguments as to remoteness, volenti, and failure to mitigate; the last of which was advanced by defence counsel. I do not propose to consider these points further as I am declining to find that there is any basis in probability or mathematics for the assessment counsel is asking me to make.

43. Having said this, I do find it probable that plaintiff has suffered some lost earnings, both past and prospective, as a result of the accident. Her promotion, which I take as likely, has inevitably been delayed, and she is less employable on the open market, if only slightly so in view of her work. I will therefore make the conventional award of a global sum under this head. It will be on the low side in terms of such awards in reflection of my finding that she is likely to catch up fairly soon with her retarded earning capacity. I award $14,000.00.

44. I accept from the evidence that physiotherapy will be needed for an indefinite period is the future. It will cost around $1,000.00 a year and counsel suggests a multiplier for plaintiff's expectation of life of 16. I am here dealing with a multiplier as at the date of hearing and I consider 14 more appropriate. I award $14,000.00 for this item.

45. I am satisfied that future nasal surgery is desirable both to clear the airway obstruction and to restore the tip of the nose. Dr. Nicholson's estimate for the combined cost of these operations is $20,000.00; 1 accept that and award accordingly.

46. There is also a claim for future travelling expenses caused by the accident. The plaintiff testified that she vas unable to walk to work, as had been her custom, and has to take taxis each way. The cost of taxis is $6.00 per journey or $12 a day. To this figure, annualised at approximately $3,750.00, counsel seeks to apply a multiplier of 14 for plaintiff's working life, giving $52,500.00.

47. In explanation plaintiff said there was no convenient bus route and she was unable to walk so far. She also said she was afraid to walk since the accident.

48. Defence counsel did not argue the taxi fare at $6.00 per journey and I note that the agreed special damages to date contains a similar item.  I accept the necessity for taxis, but again consider the suggested multiplier optimistic. I apply a multiplier of 12 and award $45,000.00.

49. SUMMARY

50. An interim payment of $50,000.00 was made in 1983 and plaintiff's counsel conceded that the agreed special damages should not carry interest for this reason. The award of general damages will carry interest at 2% from the date of service of the writ. There will be no interest on the awards for future medical and travelling expenses and for loss of earning capacity.

51. Costs are awarded to the plaintiff and her own costs are to be taxed under the Legal Aid regulations. There will be a certificate for counsel.