CHU TIK KWAN v. LIU TIK FOR t/a WING KWONG METAL SPRAYING WORKSHOP

1988, No. A2623

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. In the early morning of 19th March, 1986 a fire broke out in a metal spraying workshop on the ground floor of a wooden but at Tai Kwun Yuen, Tai Hom Village, Kowloon. Among other things which caught fire were two open drums of paint thinners which had been stored in the workshop.

2. Mr. Chu Tik Kwan, the Plaintiff in these proceedings, lived with his wife and son in a flat above the workshop, which he had purchased from the Defendant, the owner of the workshop.

3. The Plaintiff on becoming aware of the fire and the obvious danger to his family attempted to remove one of the drums of burning paint thinners out of the workshop and in doing so was splashed with burning thinners which in turn set fire to his clothing causing extensive burns over 40% of his body.

4. He was taken to hospital where he was to spend the next year, with a short break in early 1987 and then to be re-admitted for a further period of three months in 1988.

5. Mr. Barrette on behalf of the Plaintiff called three witnesses, namely the Plaintiff himself, his wife and his former employer, and submitted a bundle of documents which had been served on the Defendant in accordance with the hearsay rules and the Evidence Ordinance.

6. The Plaintiff's evidence throughout the hearing of this assessment was unchallenged by the Defendant.

7. The medical evidence in this case consists principally of a report from Dr.  Ian Nicholson dated 12th December, 1988, together with accompanying colour photographs, from which it is apparent that the Plaintiff suffered appalling injuries as a result of the burns he sustained that morning.

8. He was taken to Queen Elizabeth Hospital where in the course of the next year or so he had no less than 13 operations. The majority of these were for debridement and cleaning of the burn wounds on his body, and numerous skin grafting opetations.

9. He also had to have operations to release contractures of the scat tissue and on 14th November, 1986 he had an operation to amputate his left little finger and to release the web space of the left thumb. In April, 1988 be had a further operation for a triple arthrodesis on the left ankle.

10. As a result of these injuries and the subsequent operations he has been left with considerable permanent functional and cosmetic disability.

11. The cosmetic disability can be summarized as grossly disfiguring burn scats and scars from skin graft donor areas over much of the lower half of the front and back of his trunk, on both, his arms and. both legs In addition he has a large conspicuous surgical scat 32 cm by 8 mm crossed by 17 pairs of conspicuous stitch marks 30 mm in length in the left groin and pelvic region and a surgical scar 50 by 5 mm below the right clavicle.

12. The left arm is covered almost entirely by ugly burn scars and skin grafts, and the left hand is badly deformed both by the little finger and adjacent part of the palm having been amputated, and the other fingers having deformed and fused joints with consequent lack of strength and dexterity.

13. Apart from conspicuous skin craft donor areas, ugly skin grafts and burn scars, the right arm wrist and hand functions are normal.

14. The entire surface of the left lea and two thirds of the surface of the right leg are covered by ugly burn scars and skin grafts. The left ankle is stiff and the left foot deformed by contracture of scar tissue. The skin grafts on this leg have broken out into ulcers on a number of occasions and the skin grafts themselves age adherent to the front of the tibia. There is noticeable muscle wasting in the leg and he has difficulty in walking, and is unable to squat.

15. Dr. Nicholson is also of the opinion that the skin grafts particularly in the lower one third of his left leg are unstable and can be easily traumatised to cause ulceration and the Plaintiff has to take care to prevent trauma to this area. The Plaintiff has a low tolerance to heat in view of the damage to a large surface area of his skin, and Dr. Nicholson recommends that he should have the use of an air-conditioner in the hot summer months to relieve his discomfort.

16. The report assesses his permanent disability at 65%, but in a letter from Dr. Nicholson of 10th April, 1989 to the Plaintiff's solicitors he gives as his opinion that the Plaintiff is unlikely, in view of his disabilities, to obtain remunerative employment again.

17. The Plaintiff in giving evidence said that he had suffered a severe degree of pain in the accident itself and following the many operations he had in hospital.

18. He said that he still gets pain from his left foot particularly when he walks, he cannot squat and cannot move his ankle, and the skin at the back of his knee is very tight. He said he has difficulty holding objects with his left hand and is upset by the ugly look of the scars over his body. He frequently feels dizzy and short of breath, and as he is unable to sweat from the burnt and skin grafted areas of his body, in hot weather he feels hot and agitated and gets very uncomfortable, and his scars itch as a result. He can only get some rest and sleep properly at night in air-conditioning. He bruises easily if he bumps into anything and has had a number of ulcers in the unstable skin of his left leg. He consequently has to be extremely careful to look after the skis and the rest of his body which could be easily injured.

19. As a result of this he feels that he is unable to obtain any employment as he has trouble in travelling except by taxi and cannot stand for long because of the pain in his leg. He cannot stay for any length of time in hot weather outside air-conditioning and he accordingly agrees with the opinion of Dr. Nicholson that he is unable to find suitable employment.

20. I accept the evidence of Dr. Nicholson and the Plaintiff and propose to assess damages on the basis that the Plaintiff will not be able to work again.

21. Prior to the accident the Plaintiff worked at a factory making silk flowers operating a pressing machine which apparently was skilful work and earned him about $100.00 per day.

22. The owner of the factory Mr. Tam Chung Man confirmed this in his evidence and also confirmed that had the Plaintiff continued working for him he would have earned $130.00 per day in 1986 and $150.00 per day in 1987. From the 1st of January, 1988 the pay was $170.00 per day and in July 1989 he anticipated that it would go up again to $200.00 per day.

23. Mr. Tam also confirmed that having seen the Plaintiff and particularly the injuries to his hand he did not believe he would be in a position to offer him similar, or indeed any, employment again.

24. With regard to general damages for pain, suffering and loss of amenities Mr. Barretto has submitted that this is a case where the cosmetic disability should be assessed separately.

25. There is now ample authority in this Court supporting the principle of separate assessment, and I agree that this is a case where the cosmetic disabilities are such that they call for a separate assessment.

26. With regard to the damages for pain, suffering and loss of amenities alone, as I have said above, the injuries suffered by the Plaintiff were substantial, were sustained in terrifying circumstances and both at the time and subsequently during the course of his many operations caused extreme pain, and he is left with residual pain, discomfort, and limitation of movement, from which he will never be entirely free.

27. In the light of this I consider that the Plaintiff's injuries fall towards the upper end of the substantial injury category under the principles set out in Lee Ting Lam v. Leung Ram Ming (1980) HKLR 657 as revised by Lau Che Ping v. Hoi Kong Ironwares C.A. No.12 of 1988 and I think an appropriate sum under this heading is $200,000.00.

28. With regard to the Plaintiff's cosmetic disabilities, although he is fortunate in having little remarkable scarring to the visible parts of his face and neck, the scars to his arms and legs are appallingly disfiguring with no prospect of improvment for the rest of his life, and they clearly cause considerable distress to the Plaintiff.

29. I take into account the fact that is, at 50 years of age, no longer a young man and he clearly has a supportive wife with whom be has a lasting and stable relationship which these injuries are unlikely to affect. However, in view of the severity and extent of the scars he now bears, I consider an appropriate award under this head would be $120,000.00.

30. With regard to the Plaintiff's loss of earnings up to the date of trial I accept the evidence of the Plaintiff of his previous employer Tam Chung Man as to the wages he was earning at the time and as to those chat he would have earned since, and I accordingly award a total of $133,220.00 in accordance with the claim in the amended Statement of Claim up to 31st March, 1989 and a further $7,820.00 for the 46 working days from 1st April, 1989 to the date of trial.

31. As to loss of future earnings, I again accept that the Plaintiff would now be earning 170,00 per day and from 1st July, 1989 $200.00 per day.

32. Mr. Barretto has urged me to apply a multiplier of 9 in this case and has referred me to a number of authorities in the Hong Kong Law Journal in support of his contention.

33. I am satisfied that these support a multiplier of 9 in this case for a man aged 50 at date of trial and the loss of future earnings will he calculated accordingly. I therefore award a total of $560,820.00 by way of loss of future earnings, being one month with earnings at $170.00 per day, and the balance of the period at $200.00 per day, given a  26-day working month.

34. There is a further claim in this case for the loss of earnings of the Plaintiff's wife who gave up her employment in a garment factory in San Po Kong, where she earned $3,500.00 a month, immediately after the accident, in order to stay with her husband in hospital to help to look after him with the permission of the hospital authorities.

35. She had to help him feed himself, in going to the toilet, taking baths and other daily requirements of life, and I am satisfied that her presence was not only reasonable but necessary for the Plaintiff's recovery from his injuries.

36. She returned to work on 1st September, 1988 and I accordingly award the sum claimed in the amended Statement of Claim namely $99,166.00 being her loss of wages of $3,500.00 per month for 28 months.

37. Both the Plaintiff and his wife gave evidence in support of their claim for $791.50 for medical expenses including herbal medicines and visits by the community nursing service, for $450.00 travelling expenses to Out-patients', Physiotherapy, and Occupational Therapy Clinics, after the Plaintiff's discharge from hospital, and expenses totalling $6,581.20 arising out of the damage to their flat by the fire including redecoration charges, replacement of metal work, a door and a copper sink and the loss of their refrigerator.

38. I accept their evidence and assess these at the figures claimed.

39. There are two further items claimed in the amended Statement of Claim namely the cost of a 3/4 HPV air conditioner at $3,000.00 and the cost of additional electricity for running the air-conditioner.

40. In the light of Dr. Nicholson's opinion that air-conditioning is necessary for the reasonable comfort of the Plaintiff in view of his damaged skin condition, I accept that the cost of an air-conditioner is a reasonable claim and I accordingly allow the $3,000.00 claim, having seen documentary evidence in the bundle of documents to the effect that this is the average price for such an air-conditioner.

41. With regard to the claim for the cost of electricity, the Plaintiff gave evidence that the additional costs on his electricity bill amounted to $150.00 per month. I regard this as not only reasonable but a comparative modest claim and I propose to calculate the award under this head for the future costs of electricity on the same basis as future loss of earnings, and I therefore assess the damages under this head at $16,200.00 being $150.00 per month with a multiplier of 9 years.

42. There will be interest on the award for pain, suffering and loss of amenities at 2% since date of writ to the date hereof, and interest on special damages at 4% per annum since the date of the accident to the date hereof.

43. The Plaintiff will also have the costs of these proceedings to be taxed if not agreed, and the Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.