MAN KWOK NGAI v. FONG HOK WANG AND ANOTHER

HCPI 1033/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1033 OF 2001

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ASSESSMENT

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1. The trial of this action took place on the 20 January 2003 on which date I delivered judgment. I also made an interim award of damages in the sum of $300,000.00 for pain and suffering having considered the available medical evidence and having seen the resultant scarring on this 7 years old boy.

2. Since then an up-to-date report has been obtained from the consultant plastic surgeon Dr Otto Au. I had already considered his earlier report of 17 October 2001 together with the hospital reports and a report of September 2001 by Dr Chung See Yuen, the consultant psychiatrist. In my view it was premature to obtain such a report. The Plaintiff was not suffering from any psychiatric illness. He was of course, understandably, psychologically affected by his experience. However Dr Chung established a good rapport with him - "He did not appear to be unduly anxious when he was talking about the accident or his experience at the hospital". He was however uneasy when Dr Chung examined his scars, as one would expect, and it was with this in mind that I decided not to ask him to show me all the scarring. I relied to some extent on the photographs showing the scarring at an earlier stage and recent photographs showing the degree of improvement over the two and a half years since the accident.

3. This young boy undoubtedly had an extremely painful time having been scalded by a large quantity of hot soup being spilt over him. He suffered second degree burns. It is difficult to assess the extent of the area of his body affected because the percentages given are of the regions affected. However, again, the photographs and my own examination gave a reasonably good indication of it.

4. He had three operations for débridément of the most seriously affected areas in the second half of August 2000 and he spent nearly three weeks in hospital. Thereafter he attended hospital as an out-patient for frequent changes of dressings.

5. Early photographs show pressure garments and/or dressings covering his chest to lower abdomen, his right thigh to his hip and left upper and lower arm. The scarred hypertrophic areas on his right thigh and left arm were noticeably livid and raised. There was a similar area on his left centre chest.

6. When Dr Otto Au saw him about ten days after I had seen him he noted that the scars were still sensitive when pressed, there were areas of sensation of tightness and the scarring overall was still very unsightly although there had been much improvement over the years.

7. Dr Au has now reduced the likelihood of steroid injections but thinks laser treatment might yet effect further improvement. There may be some need for psychological counseling. I prefer this assessment to that of Dr Chung See Yuen. The Plaintiff's mother is quite understandably very protective towards her young son, he is still only 7 years of age and perhaps she has more of a need of advice as to how to help her son adjust. He seemed a naturally interested young lad who may be enjoying the extra attention which he has received. I am sure he will develop normally although his aversion to exposing his body when swimming - he really avoids this activity - is to be expected.

8. Equally surely he will experience in his early teens a renewed degree of psychological sensitivity to the cosmetic appearance of the scarring. However successful the laser treatment, some scarring will inevitably remain.

9. For pain and suffering and the residual difficulties, cosmetic scarring and psychological upset the figure will be $375,000.00

10. The following items of special damages are allowed:

Medical expenses	4,078.00
Traveling expenses	4,260.00
Incidental medical items	712.00
Tonic food	7,500.00
Babysitting fees being paid for looking after the Plaintiff for one week (in total) whilst the mother was absent.	1,050.00
Value of parents' services (approximately 21/2 months) for care of Plaintiff following accident	13,000.00
Future medical treatment	67,000.00
Psychological treatment	15,000.00
[I allow this in part to reflect future need. I do not consider it helpful or advisable for him at present. He needs every encouragement to adjustment to normality. It is sufficient if I make a provision of 15,000 for the future.]

Loss of Earning Capacity

11. Despite Miss Pinto's careful and balanced argument, I think this head of claim is too speculative. I doubt that his future career, whatever that may be in twelve years' time, will be affected in the slightest. Even if he were to choose a career as a male model the extent to which he would be required to model swimwear would itself form only a small part of such occupation.

12. There will therefore be judgment for the Plaintiff for $487,600.00 together with interest at the appropriate rates for the relevant periods on the items which rank for interest. The Plaintiff will also have his costs of the action on a Common Fund basis which I will now proceed to assess under Order 62 rule 9(4)(b).

Assessment of Gross Sum Costs

13. The 1st Defendant who carried on the restaurant business employed the 1st Defendant. There was public liability insurance cover but the company concerned, Summit Insurance (Asia) Limited, has refused to indemnify the 1st Defendant under the policy. It took no part in these proceedings other than an ill fated attempt to intervene at an early stage when it made it clear that it was not prepared to meet any judgment. It is to be hoped that, now any factual uncertainty has been resolved, it will reconsider its position.

14. The action therefore proceeded without any form of representation for the 1st Defendant. The 2nd Defendant, for whom solicitors had for some period of time been acting, continued to attend in person though it was clear throughout that he was the employee of the 1st Defendant against whom the Plaintiff needed to establish liability.

15. Initially the Defendants blamed the Plaintiff's mother for failing to supervise him properly but she was never joined as a third party.

16. For solicitors profit costs including copying charges the sum allowed is $120,000.00 This is also to include any fee to a costs draftsman, whose services were not justified for this exercise.

17. Medical fees are allowed at $27,600.00 for the consultants, and $1,310.00 for the government hospital reports.

18. Court fees are allowed at $2,090.00, Counsel's fees are allowed at $2,000.00 for Advice and Considering Revised Statement of Damages; $24,000.00 for Advice on Liability, Quantum and Evidence, $4,000.00 for a conference and $60,000.00 (inclusive fee) for trial and the assessment of damages, a total of $90,000.00.

19. When the insurance company failed in their attempt to intervene, they agreed to pay $75,000.00 costs, which included counsel's fees of $25,500.00. That was an extremely high level of costs for an interlocutory aspect. There would have been an overlap of work, and I have taken that into account in my assessment of the Plaintiff's solicitors costs. I have also had regard to the fact that counsel was instructed on three occasions apart from the trial and the interlocutory application. The total gross sum assessment is therefore $241,000.00