WONG TSZ HO v. CHENG HOI MIN t/a KWONG YIP ELECTRIC METAL CO AND ANOTHER

HCPI 52/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 52 OF 2014

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ASSESSMENT OF DAMAGES

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1. On 6 August 2009, the plaintiff, who was an infant, went to a shop at Ground Floor, 260 Temple Street, Yau Ma Tei ("the Shop") with his mother.  While he was standing near the door of the Shop, a cat hit or knocked something over.  A container failed which had no lid.  The liquid in it which was corrosive splashed out and the plaintiff was hit and suffered injuries.

Parties

2. The plaintiff was born on 7 August 2003.  He was one day less than 6 on the day of accident, and is 11 on the day of assessment. This action was brought by the plaintiff with his mother Madam Chen Guifeng (“Madam Chen”) acting as his next friend.

3. The 1st defendant was the owner of the Shop and the 2nd defendant was the shop keeper at the material times.  Interlocutory judgment on liability has been entered against the 1st defendant on 12 May 2014.  The plaintiff has withdrawn the claim against the 2nd defendant.

The Claim & Assessment

4. The case was set down before me for assessment of damages.  There had been a number of checklist review hearings before today, but the 1st defendant had not attended.  He is also absent today.  Affirmation of service has been filed and I am satisfied with service.  I proceed in the absence of the 1st defendant.

5. As interlocutory judgment was entered at the early stage, no statement of claim has been filed.  A statement of damages (which the plaintiff wrongly named as Schedule of Damages) has been filed and served after obtaining expert report. The plaintiff claims the following damages –

PSLA	HK$300,000 – 350,000
Loss of opportunity of congenial employment	HK$100,000 – 150,000
Future medical treatment	HK$50,000
Miscellaneous expenses (medical, travel)	HK$30,607

Interest

6. For the miscellaneous expenses, and after hearing the evidence, Mr Millar, solicitors for the plaintiff withdraw the claim for future costs of cream in the sum of $17,136.

The plaintiff’s evidence

7. Mr Millar called 3 witnesses for the plaintiff.

8. The plaintiff has given evidence in Court.  He adopted his witness statement dated 21 November 2014 as his evidence in chief.

9. According to his evidence, on 6 August 2009, he went to the Shop with Madam Chen.  While he was standing near the door of the Shop, a cat hit or knocked something over.  A container failed which had no lid.  The liquid in it splashed out hitting his face and eye.  Some liquid also hit the ground and splashed up and hit his legs.  The liquid hurt.  Water was poured into his eyes by his mother and later water or some kind of solution was poured again by the attending ambulance crew.  He was eventually taken to the Queen Elizabeth Hospital (“QEH”) for treatment, and was discharged on the same day.

10. For a period of time after discharge, he had to go with his mother to a clinic to have his wounds dressed.  He had scars left on his face, particularly to the right hand side of his nose, and both legs.  In the past, people had commented on him either about his nose or his legs or both.  They did not comment as much nowadays.

11. He also said in evidence that people would ask him what happened to his nose and legs.  Some just teased him.

12. He also said his classmates no longer make comments on his scars.  However, he felt sometimes they focused on the scar on his nose although they did not comment on it.

13. He also said the scars itched.  His mother would put some cream on to help to sooth the itchiness.

14. On what he would work or do in future, the plaintiff said he had no idea.

15. The second witness is Madam Chen.  She adopted her witness statement dated 9 December 2014 as her evidence in chief.

16. She repeated how the accident happened.  She said the plaintiff came into contact with a container that held a colourless liquid, corrosive, possibly drainage cleanser.  The liquid splashed onto the plaintiff’s face, arms and legs.

17. The plaintiff screamed and the 2^nd defendant gave her a bottle of water which she used to wash or flush the plaintiff’s eyes.  An ambulance was called.

18. When the ambulance arrived, the crew poured water or liquid on the plaintiff, on his face and his legs.  He was then taken to QEH.  Later, the plaintiff was referred to the Eye Hospital where he was examined and attended to.  Then the plaintiff was discharged.

19. Subsequently, the plaintiff had to go to a government clinic where his wounds, particularly those on his legs were to be dealt with and dressed.

20. Over a period of time, the burns got better in the sense that the wounds went.  The plaintiff developed scabs then scars or blebs, particularly on his legs, which are now quite visible.

21. The injuries to his arms have cleared up and are not really visible.

22. The injuries to his face is visible, particularly that to his nose and his eyelid.

23. Madam Chen said in evidence that in summer times, people would ask what happened to the plaintiff.

24. She was told by the Eye Hospital that the plaintiff had difficulties with his sight but not due to the accident.

25. On claims for miscellaneous expenses including medical, transportation and cream, Madam Chen said she stopped buying cream for almost 2 years from today.

26. She was also referred to paragraph 45 of the Schedule of Damages and confirmed the figures of medical and other expenses for the treatment of the plaintiff.

27. The third witness is Wong Wai Ming, the father of the plaintiff.  He was not present at the Shop when the accident happened.  He met the plaintiff at QEH.

28. After the plaintiff was discharged, Mr Wong took a number of photographs of the plaintiff’s face and legs, which had been produced in the Assessment Bundle.

29. Mr Wong also said the plaintiff was vivacious and talkative before the accident. After the accident he was quieter and withdrawn.  He would always look down. He did not want eye contact with people.

30. He was present when people commented that the plaintiff had been a naughty boy because of the scarring on his face.  Similar comments had been made to his legs.

31. He also mentioned the scars he had and said people noticed the scars and sometimes made comments about what they assume to be its origin, such as a fight. But each person’s experience would be very different and I do not find his evidence in this aspect of assistance.

Medical evidence

32. According to a medical report from QEH dated 10 March 2014, the plaintiff received treatment first at the A & E department.  Medical examination revealed chemical burn to his left eye and he was treated and referred to eye clinic. In addition, he also had minor chemical burn to his face and left forearm and both knees.

33. According to a medical report by the Hong Kong Eye Hospital dated 2 October 2009, the plaintiff was first seen on 6 August 2009 on referral by A & E department of QEH.  The diagnostic impression was moderate left eye chemical burn.  Examination found chemical burn involving the left periocular skin and ocular surface.  The periocular skin chemical burns were multiple, small and superficial, without any open wound or lid margin involvement.  The left eye conjunctiva was markedly edematous and moderately injected.  The conjunctiva was intact and no foreign body was found in the fornices.  There was nearly total corneal epithelial defect and mild blanching of corneal limbal blood vessels.

34. The right eye examination was unremarkable with neutral pH, clear cornea, quiet looking eye and free of foreign body.

35. Medication to the eye was prescribed. The plaintiff's condition demonstrated steady recovery on follow-up.  On day 6 after injury, the skin burn and corneal epithelial defect were healed. 

36. On the latest follow-up on 25 September 2009, his left eye had recovered from previous injury and was stable with clear cornea.  His visual acuity after correction of refractive error was 0.7+ for right eye and 0.6+ for left eye.  He had an uncomplicated recovery and his ocular condition was stable upon latest follow-up.

37. As for the burns to his skin, the plaintiff has not re-attended QEH for treatment.  He did attend Yau Ma Tei Jockey Club General Outpatient Clinic on at least 16 times for dressing his wound from 7 August 2009 to 10 September 2009.

38. Leave had been granted to the plaintiff to adduce medical evidence by one plastic surgeon, Dr James Kong and his report dated 6 June 2014 was produced without calling him.

39. According to Dr Kong, on examination, the plaintiff had no specific complaints.  He walked into the consultation room normally and did not have any specific motor or sensory defect.  He commented the plaintiff as a healthy young boy.  In particular, he commented on 4 areas of scarring on the plaintiff.

40. He first commented on the flat scarring on the nose of the plaintiff.  There is a long ‘widened’ hypertrophic/keloid scar on the right side of the nose, with a small pimple visible.  The scar is slightly raised and easily palpable (felt), hence is prominent particularly when viewed at an oblique angle.  The pimple can be managed by conservative measures and is likely to be related to his age rather than the result of the injury.

41. To improve the scar, i.e. to reduce the prominence, intervention would be appropriate when the plaintiff reached late teens when he is no longer growing in height.

42. There is also a scar to the left peri-ocular region.  It is small and unlikely to change with age.  It is unsightly but does not at present cause any disability or symptoms to the plaintiff.  There is another scar to the left upper lip areas.

43. For the scars on right knee and thigh, they are hypertrophic/keloid scars.  They are unsightly but do not at present cause any disability or symptoms to the plaintiff.

44. There are 2 scars on left lower limb, 2 & 3 centimetre in length.  They are hypertrophic/keloid nature.  The scars is unsightly but does not at present cause any disability or symptoms to the plaintiff.

45. Dr Kong is of the opinion that the scar is consistent with the injury.  Given the duration since the injury is nearly 5 years, there is no regression, the scars should now be termed keloid scars. The scars in the left periocular and upper lip regions appear to have healed best with little evidence of hypertrophy.

46. Dr Kong opines that it is no longer worthwhile to use any topical lotion, cream or ointment.  The limb scars can be covered with long trousers and the scar themselves are not likely to cause any problem or limit any activity despite remaining unsightly.  However, the one on the nose will be a hindrance should he consider working in an environment where his facial appearance is crucial, such as service industry like cabin crew, or modelling.

47. To improve his scar, dermabrasion or laser-resurfacing may be performed in his late teens when he stops growing. The cost is about $10,000 to $50,000, depending on the number of treatment session he needs.  The use of makeup concealer may help alleviate this situation without management.

Discussion and Ruling 

48. The plaintiff claims PSLA in the region of $300,000 - $350,000.  Mr Millar submits that in assessing the damages, I should bear in mind the scarring is permanent.  It is not disputed that the scarring on the legs can be covered up with long trousers.  But it would affect his activity such as swimming, football or basketball, when he has to wear shorts.

49. The scar on the nose is more prominent. When looked at directly the nose scar is not highly visible.  When looked at obliquely it is clearly seen.

50. Mr Millar submits that he cannot find similar judgment on assessment of PSLA with similar scarring or cosmetic effect from chemical burns.  He suggests that the injury by corrosive liquid is equivalent to burning.  He refers to a number of cases when the plaintiffs suffer scarring after burns.  I shall come to these cases shortly.

51. In both cases of burns and chemical burns, a plaintiff usually suffers from injury to the skin by fire or chemical.  This would result in a period of pain, and medical treatment may be required.  In both kinds of burns, they could damage the skin of the victim. And scars could be permanently left after healing.  It is known that the scars in serious case could affect the mobility of the victim.  In minor cases, there could be discomfort, such as itching or pain on the scar.  I agree with Mr Millar that I could refer to cases where the plaintiff suffered from burns in assessing PSLA.

52. Mr Millar submits that he is not suggesting that the injury is of the most serious type, which I agree.  I have to say that the plaintiff is very lucky in this accident.  Had some of the chemical liquid entered his eye, the position could have been very different. After the chemical burns, he had been taken to hospital and later transferred to the eye hospital, and then discharged. 

53. The plaintiff does not require hospitalisation in this case.  After discharge, he has to return to a clinic for out-patient treatment and dressing of the wound for about 16 times in August and September 2009.  His wound healed without complication, as recorded in the medical report.  As commented by Dr Kong, his mobility is not affected.

54. And the plaintiff did have itching for some time when cream had to be applied.  From the evidence, it must be reduced as cream had not been applied for 2 years.

55. The main complaint on the scars is how the plaintiff’s social life is affected.  It is the evidence of the plaintiff and his mother that people asked what happened to him creating embarrassment.  The scars on his upper limbs are not visible.  And his scars on his legs can be covered up with long trousers.  But when he goes swimming, or has to wear shorts when doing sports, the scars may be visible.

56. From the photographs produced, the scars are not very prominent.  I accept that it would create some inconvenience to the social life of the plaintiff.  And I accept he received some teasing as explained by the plaintiff and Madam Chen, creating embarrassment.

57. The main complaint appears to be the nose scar.  It is not very prominent.  As explained by Mr Millar, and also appearing from the report of Dr Kong, it is only visible from some angle of view.

58. Mr Millar has kindly summarised about 10 cases in paragraphs 53 to 64 of his written opening, which I have considered and do not repeat herein.  Mr Millar relies heavily on the case of Susi Yanti & Anr v Chu Shiu-Chuen HCPI 1176/2000, which is an assessment by Master de Souza.  Both plaintiffs were subject to attack by a pack of dogs.  The 1^st plaintiff sustained multiple abrasions and laceration wound over lower and upper limbs.  “Colour photographs taken at the time show quite serious scratch marks and puncture wounds on her limbs.  More recent photographs demonstrate the existence of extensive, quite ugly scars.  These scars are permanent and the plaintiff will have to live with them as best she can. (paragraph 7 of the judgment)”. 

59. “There were no fewer than 19 very conspicuous, darkly pigmented, raised and scattered scars of significant dimensions on the back of the 1st plaintiff’s right leg. There were also multiple faint abrasions and puncture scars on that limb.  On her left calf, there were 4 obvious similar unsightly scars, as well as a number of faint, scattered abrasions and puncture markings. (paragraph 9 of the judgment)”.  It is obvious that the injury suffered by the 1^st plaintiff is more serious.  An award of 380,000 was given to the 1^st plaintiff.

60. The 2^nd plaintiff in the Susi’s case is an infant of 4.  “Upon admission to Yan Chai Hospital after the attack, this young victim was found to have 3 laceration wounds over both thighs and multiple minor bite and scratch marks over her thighs and left arm.  As observed, she was clearly luckier than the 1st plaintiff as her injuries were far less serious.”  Master de Souza also noted that the 2^nd plaintiff has had a very terrible experience of being attacked by dogs.  The award to the 2^nd plaintiff is $130,000.

61. The plaintiff is lucky that he does not have similar scars and markings as the 1^st plaintiff in the Susi’s case and I do not think that his injuries and experience come close to that of the 1^st plaintiff.  His injuries and residual marking is more akin to that of the 2^nd plaintiff.

62. The other cases as quoted are of more serious injuries.  A closer comparable would be the case of Cheang Kam Ian HCPI143/1998.  In the judgement of Suffiad J., the judge ruled that the plaintiff failed to establish liability.  Yet the judge move on to consider quantum just in case he may be wrong.

63. The plaintiff there suffered from burn to his leg.  He was found to be suffering from a circumferential first to second degree burn on his right calf.  5% of the total body surface was involved. Debridement of the necrotic skin was done and the plaintiff was discharged after seven days of hospitalization.  Later he was readmitted into hospital for five days because of unsatisfactory healing.  Subsequently the wound healed well without hypertrophic scar.  The experts agreed that he had some cosmetic disability as a result of the scars left behind.  The scars would be permanent and nothing could be done to eradicate the scars completely.  On PSLA, Suffiad J. say:-

“My own view is that because there is no functional disability upon this plaintiff as a result of his injuries, the present case is far less serious than the ‘serious category’ contemplated in Li Ting Lam’s case. I take into account that the scars will be permanent and that there is still some residual pain. I also take into account the fact that although the plaintiff is a male in his early 20s, he is somewhat embarrassed about these scars. All told, $200,000 would be a reasonable compensation for the plaintiff’s pain, suffering and loss of amenities.”

64. I also refer to the judgment of HH Judge Lok (as he then was) given in X v Y DCPI 229/2002.  Acid was thrown in the face of the plaintiff who sustained minor chemical burns on the face, and a stab wounding of about 3 cm long in the right thigh.  Embarrassment to the plaintiff by the facial scar and emotionally affected.  PSLA of $180,000 was awarded.

65. Having considered all the judgment (including those referred to by Mr Millar and not set out herein), and all the evidence adduced including evidence not mentioned herein, and taking into account the inflation factor as these cases are not recent, I come to the conclusion that an award of $280,000 is reasonable.

66. On the claim for loss of congenial employment, Mr Millar refers to the report of Dr Kong on the nose scar.  He submits that there could be restriction as to the nature of employment in future, particularly should the plaintiff wishes to take up career where good looks are very important.  And as the plaintiff does not have a track record of earning, it is submitted that a lump sum award is appropriate.

67. On the award of congenial employment, a detail discussion was given by Master Lai in the case of Chan Hang Ying Vanessa v Lo Ka Wai & Anr, HCPI 58/2012.  I refer to paragraphs 125 & 126 of the judgment –

“ 125. As pointed out by Suffiad J in Chan Yiu Ping v Mok Yuk Kwong and others (unrep., HCPI 92/1998, 3 July 2000), an award for loss of congenial employment might be made when the claimant had had to give up a job which he enjoyed and which gave him satisfaction and/or status.

126. In Wong Sau Lai v Cathay Pacific Airways Ltd (unrep., HCPI 111/2001, [2003] HKEC 1284) (on appeal [2005] 4 HKLRD 395 and [2006] 9 HKCFAR 371), the claimant was forced to quit her “dream job” as a flight cabin attendant and the court awarded $120,000 to her under this head.”

68. There is no evidence that the plaintiff has to give up a job that he enjoys since he has not started working.  And there is no evidence on what job he is hoping for and which he cannot achieve because of the nose scar.  According to his evidence, he has no idea what to do in future.

69. The 2 cases referred to me by Mr Millar, HCPI 451/2009 and HCPI 19/2013 are rulings on loss of earning capacity.  They do not assist the plaintiff.

70. I do not think this is an appropriate case to make any award under this head of claim.

71. Dr Kong recommended further management of the nose scar by dermabrasion or laser resurfacing.  The costs would be in the region of $10,000 to $50,000 depending on the number of treatment sessions.  I see no reason to refuse this claim for treatment.  Mr Millar submits that taking into account medical inflation, $50,000 is a reasonable sum, and I so awarded.

72. I also award the plaintiff with the medical and other expenses under paragraphs 45(a), (b), (c), (d), (e), & 46 of the Revised Statement of Damages, in the total sum of $13,471.

Conclusion

73. I assess that the damages payable by the 1^stdefendant to the plaintiff as follows:

PSLA	HK$280,000
Loss of opportunity of congenial employment	nil
Future medical treatment	HK$50,000
Miscellaneous expenses (medical, travel)	HK$13,471

74. I also make an order nisi that the 1^st defendant do pay to the plaintiff interest at 2% per annum on general damages for PSLA from the date of the writ until judgment and interest at half judgment rate on the balance of the damages from the date of the incident to judgment.

75. I also make a costs order nisi against the 1^st defendant in favour of the plaintiff for the assessment of damages proceedings including all costs previously reserved in relation to the assessment of damages.  As the plaintiff is legally aided, his own costs shall be taxed in accordance with the Legal Aid Regulations.  In view of the amount of damages awarded, which is well within the jurisdiction of the District Court, the appropriate scale for the taxation shall be the District Court scale.

76. The above order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.