CHEUNG YUK CHUN AND OTHERS v. MITSUI CONSTRUCION CO LTD AND ANOTHER

H.C. Action No.12597 of 1982

Personal injuries claim - general damages assessed for degloving injury to legs of young girl - loss of future earning capacity, difficulty in making accurate assessment, global award made - future medical expenses overseas, whether cost of private treatment can be claimed - loss of father's earnings while visiting his child in hospital and accompanying her to aftercare treatment, recent English decision distinguished.

No. 12597 of 1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is a claim for damages arising out of an accident which occurred on the 28th September 1981. At that time the victim was aged 9 years and was living with her 80 year old grandmother in a village near Sha Tau Kok in the New Territories. Her parents had left Hong Kong and were living in Glasgow where her father had a job in a restaurant. For reasons best known to them they had left their daughter in the care of her paternal grandmother.

2. On the date in question this young girl and her grandmother left their village sometime before 9 a.m. intending to catch a bus to Sha Tau Kok. They proceeded along a road leading from the village until they reached the main Sha Tau Kok road where the bus stop was located. As they stood waiting in the vicinity of the bus stop a dump-truck was being driven towards Sha Tau Kok by the 2nd Defendant. As it passed the bus stop the rear left mudguard hit the victim knocking her to the ground. She suffered serious injuries which are the subject of this claim.

3. It was conceded by Counsel for both Defendants, Mr. Michael Ozorio, that since the 2nd Defendant had been convicted for careless driving the burden of proof shifted and it was for the Defendants to show, on the balance of probabilities, that the 2nd Defendant was not negligent.

4. Two conflicting versions have been placed before this Court as to the manner in which the accident occurred. The victim's evidence was that as she stood with her grandmother some 2 to 3 feet from the edge of the road she was hit by the truck. The 2nd Defendant maintained that he had seen the girl and her grandmother standing at the side of the road when he was some 100 feet away. After the front of his vehicle had passed them he looked into his rear vision mirror and saw the little girl come out onto the road. He swerved and braked but on alighting saw that she had been hit. This evidence is consistent with the statement he gave to the police when he said that when the truck had passed them he saw in his mirror that the girl was dashing into the road - he swerved right and braked but could not avoid her.

5. To assist in establishing where the truth lay I had before me sketch plan prepared by an officer attached to Traffic Section, New Territories. Several aspects of this sketch are significant. Firstly it shows that Sha Tau Kok Road at this point is relatively narrow and the 2nd Defendant's evidence that he had only one foot of carriageway on either side of his truck is probably no exaggeration.  It was, therefore, encumbent on him to exercise the greatest care particularly when traffic on the opposite carriageway included large vehicles.

6. The sketch plan also shows the spot where blood was found on the road. There does not appear to be much dispute that this is the position in which the victim was lying after the accident. From this both Counsel attempted to draw varying inferences as to where the point of impact occurred but I am not persuaded either way as I believe the element of speculation plays too great a role. I say this because without knowing exactly how this little girl was hit by the truck and the exact cause of her injuries I cannot be sure whether she was thrown by the impact or dragged by the truck for a short distance and for this reason I do not intend to dwell on this point further.

7. One other indicator highlighted by the sketch is the position of the defendant's vehicle after the accident. It is shown at an angle with the front of the vehicle encroaching into the opposite carriageway and the rear less so. This, it was submitted, is consistent with the 2nd Defendant's evidence that on seeing the girl came onto the road he braked and swerved right. Brake marks shown on the road measure 4 metres on the rear side and one metre on the off-side. Counsel for the Plaintiff, Mr. Nicholas Pirie, suggested that as the brake marks were single lines they were probably caused by the front wheels and that the vehicle's position was equally consistent with it pulling back onto the road after the impact. Again the point is capable of various interpretations and is by no means conclusive evidence of either side's version of this accident.

8. Unfortunately the grandmother was unfit by reason of her age to give evidence but a statement given by her to the police was before the Court having been one of a number of documents included in a notice filed under Section 47 of the Evidence Ordinance. In this statement she indicated that her granddaughter was standing about one foot in front of her and several feet from the road when she was hit. The girl herself placed a mark on one of the photographs exhibited as to where she was standing when hit and this also indicated that she was two or three feet from the edge of the road. The position she marked is probably wrong insofar as it accurately pinpoints her position along that road but I placed no great significance on this as the photographs were taken some considerable time after the accident and a number of changes had taken place in the vicinity of the scene since the accident.

9. The 2nd Defendant was hardly an impressive witness principally because he seemed unable or reluctant to answer the questions being asked offering instead answers unrelated to the questions put. Apart from this I found parts of his account highly improbable. I do not, for instance, believe that this girl would, in the circumstances, have walked or run out onto the roadway into the side of his truck nor do I believe his account when he describes seeing this in his rear-vision mirror after the front of the truck had passed her. I do accept that at the time the truck was approaching the bus stop a bus was proceeding in the opposite carriageway and this fact will have some significance when I reconstruct what I believe is the most probable sequence of events.

10. From the evidence before me I find that on this straight piece of road the 2nd Defendant should, and indeed he has admitted that he did see this girl and her grandmother standing at the edge of the road some distance ahead. At the same time he would have observed that a bus was approaching in the opposite carriageway. He says the girl was 2 to 3 feet from the edge of the road. This is in accord with all other versions. With the approach of the bus and the narrowness of the road the reasonable and prudent driver should immediately have foreseen that he would be passing very close to the pedestrians ahead and realizing the danger would have sounded a warning and slowed down. The 2nd Defendant concedes he did neither. He remained in 4th gear and maintained a speed of 20 m.p.h. I then find that the 2nd Defendant edged to the left to ensure clearing the approaching bus. From all the evidence I must also find that the little girl had herself moved closer to the edge of the road and as a result when the vehicle passed the victim was hit. I am satisfied that the 2nd Defendant must have been acutely aware that he was perilously close to the pedestrians and that, I believe, is the reason why he immediately looked into his rear-vision mirror and, no doubt, to his horror saw that the girl had been hit. He swerved right and braked sharply.

11. The 2nd Defendant pleaded guilty to careless driving or 12th May 1982 in Fanling Magistrate's Court. He made no attempt when giving evidence to explain why he entered such a plea.

12. In assessing liability the major share of the blame must rest on the 2nd Defendant's shoulders. He took no action whatsoever to avert or avoid what must have been clear to him was a potentially dangerous situation. A special duty of care is owed to young children on the road as they do not have the judgment and responsibility expected of adults. The 2nd Defendant was, as I have found, going to pass extremely close to the pedestrians and yet he neither gave warning of his approach nor slowed down. A degree of responsibility must nevertheless rest with the victim herself. At the time of the accident she was 9 years old and she is by no means stupid or unintelligent. Her actions in standing so close to the edge of what is a narrow road contributed to the cause of the accident and after giving the matter considerable thought I have determined her contribution at 15% and the remaining 85% must be borne by the 2nd Defendant.

13. I now turn to the question of damages.

Pain Suffering and Loss of Amenities

14. The injuries suffered by the victim, CHEUNG YUK CHUN, have been fully documented in a number of medical reports produced in evidence. YUK CHUN suffered a fracture of the right humerus, a bone of the upper arm, and received a de-gloving injury of both legs and feet. She underwent immediate treatment to her legs and the arm was put in plaster. On 8th October 1981 the fractured humerus was the subject of an operation when a bone plate and screws were applied. I am told that these were subsequently removed in a further operation about a year after and there is no functional disability remaining as a result.

15. In late October and mid-November 1981 skin grafts were carried out to both legs and feet using skin from both thighs. She also has a scar on the back of the upper arm.

16. YUK CHUN was in hospital for 4½ months. She has been left with substantial scarring over both legs and both feet. She has also suffered a functional disability in that she cannot straighten her left foot. She must walk on tip-toe with her spine and pelvis tilted to compensate for this. As far as this functional disability is concerned Dr. Wedderburn was satisfied that this could be substantially improved if a further operation were performed to lengthen the tendon. This would enable the foot to be straightened so that it would be flat on the floor when standing upright. He urged that this operation be carried out as soon as possible and suggested the school vacation at Christmas as the ideal time. Dr. Wedderburn was adamant that dorsi flexion of this foot will never be possible and that she will always walk with a limp and will be unable to disguise it. This permanent functional disability will considerably limit her ability to play sport and indulge in any prolonged activity which requires her to walk or run. As such this disability would also limit her, in the future, in the choice of certain occupations which require periods of long standing or walking.

17. The other remaining permanent injury is, of course, the cosmetic disability. After her discharge from hospital the scars on both legs and feet and on her arm attracted some keloid formation which is an overgrowth of the skin projecting the scar beyond skin level and is extremely ugly in appearance. This formed on the ankles, calves and thighs, the latter having been the donor area for the skin grafts performed while she was in hospital. Photographs produced vividly illustrate the unsightly scarring which this young girl carries. Prior to his giving evidence Dr. Wedderburn carried out a brief examination of YUK CHUN and he was able to advise the Court that since his last examination there had been a remarkable improvement in the scarring. He described it as "spectacular". He now believes that skin grafts to the thighs will not now be necessary. It will be necessary for her to have a flap graft to replace the whole of the scar on the left foot. This is achieved by taking a tube of skin and gradually growing it from the donor to the recipient leg. In the process both legs would have to be plastered together for 3-4 weeks and the total period of hospitalization would be about 10 weeks.

18. Despite all treatment this girl will always have extensive and unsightly scarring on both legs and feet. Both legs will never be the same shape. They can be covered by slacks but the implications of this cosmetic injury will become much more serious as she grows older and particularly as she reaches the age of marriage. She will undoubtedly undergo a psychological reluctance to be seen in a bathing suit, skirt or shorts. This will almost certainly curtail her social activities such as swimming, dancing and other similar pursuits now so popular with the young people of Hong Kong and elsewhere in the western world.

19. At the present time YUK CHUN is a bright, happy little girl. Dr. Wedderburn described her as an extrovert but she is only 11 years old and has yet to experience many of the situations which will lead to her scarring being an embarrassment to her. It will, in my view, substantially hamper her general enjoyment of life.

20. In assessing the amount of damages to be awarded under this head I have been greatly assisted by both Counsel who have referred me to a number of previous awards in cases similar to the one now being considered. Some guidelines as to such an assessment were set out in:

"LEE Ting-lam v LEUNG Kam-ming"

(1980)H.K.L.R. P.657

21. In his judgment at page 659 Cons J.A. sets out four categories of disablement into which different cases can be fitted and the range of awards relating to each category as they were in May 1980. These awards were up-dated by Barker J.A. in:

"LI Ping-sum v CHAN Wai-tong"

(1983) C.A. 53

who considered that in October 1983 they should be increased by about 50%.

22. For the reasons which I have given when commenting on the injuries received by this young girl I would place this case at the top end of the lowest category as outlined in "LEE Ting-lam's" case entitled "serious injury".

23. Mr. Ozorio has referred me to a number of awards made in Hong Kong and after suggesting certain adjustments when the degrees of disablement were compared with this case and also after due allowances for inflation concluded that they all pointed to an award of about $90,000.

24. Mr. Pirie requested that I treat the present case as similar in most respects with that of

"Fahima DIN v LEE Kwei-ying"

(1980) H.C.A. No. 3811

25. When Master Hansen awarded $150,000 under this head in June 1984. I have carefully considered the injuries suffered by Miss Din and have had the advantage of seeing the coloured photographs produced as exhibits in that case to illustrate the scarring suffered. It was also a degloving injury to both legs and feet and Miss Din was 4 years old at the time of the accident. In many respects it is similar to the present case but I am of the view that the injuries were more severe than those suffered here. In the "Din" case the victim's left leg was denuded of skin from just below the knee to the ankle exposing muscles and deeper structures. The greater part of the calf muscle of that leg was also lost. Permanent disability was expressed by some doctors to be 40% whereas in this case Dr. Wedderburn assessed total impairment at 11%. It does appear, however, that the victim will not be quite as unlucky as YUK CHUN will be in relation to her permanent limp.

26. As I have indicated I believe the present case falls into the top bracket of the "serious injury" category which had a range of awards of $60,000 - $80,000 in 1980. I would choose the higher sum and by adopting the increase suggested by Barker J.A. in "LEE Ping-sum" of 50% this would bring the figure to $120,000. However, over one year has passed since "LEE Ping-sum" was decided and I believe the appropriate sum to award under this head of damages is $130,000.

27. I find this figure also measures well in my comparison with the award in the "Din" case and am satisfied it reflects the general pattern which as emerged in other cases of a similar nature. I therefore award $130,000 for pain, suffering and loss of amenities.

Loss of Future Earning Capacity

28. In the light of the permanent functional and cosmetic disabilities the Plaintiff seeks damages for loss of future earning capacity on the basis that her limp and scarring may prejudice her chances with some employers and, in any case, her range of employment is reduced as a result of the injury to her foot.

29. Mr. Ozorio submitted that no award should be made under this head citing the virtual impossibility of reaching a figure which could be considered an accurate reflection of the loss, if any, which might occur. I do not believe that for that reason above no award should be made if there is the probability of a loss of future earnings. As was said on the same subject by Cons J.A. in LEE Ting-lam

"There are times when a judge must apply his judicial intuition to what little there is"

30. What we have here is a young girl. Her parents are from a village in the New Territories and do not pretend to a high standard of education. She may or may not live in Glasgow but wherever she lives she will appear before a potential employer with a visible limp. To cover her scars she would have to wear slacks. All things being equal and human nature being what it is she would probably lose out to an equally qualified competitor. Similarly she could not apply for a certain range of jobs such as a waitress, a model or any employment requiring long periods of standing or walking. If she were to lose a job she could well take longer than her equal to gain re-employment.

31. The difficulties in placing a figure on these disadvantages must be obvious and rather than trying to use multiplicands and multipliers I prefer to make a global award and the figure I choose as the most appropriate is $30,000.

Future Medical Expenses

32. Earlier in this judgment I have made reference to two future operations which this young girl will have to undergo. The first was to improve the movement of the left foot by the lengthening of the achilles tendon and possibly a tendon transplant so that, at least, she can place her foot flat on the ground. Dr. Wedderburn estimates this will only involve hospitalization for 4 days.

33. The second was for the necessary skin grafting to the left foot which will mean a 10 week stay in hospital. It now seems most likely that she will accompany her father to Scotland and that both these operations will, therefore, be carried out in Glasgow.

34. Dr. Wedderburn has estimated that to have this treatment carried out privately it would cost in the vicinity of £5,000. The alternative is to seek treatment under the National Health Scheme in which case it would cost nothing.

35. Mr. Ozorio contends that no damages should be awarded under this head. He supports his contention by pointing to the fact that if these operations were carried out in Hong Kong at a Government Hospital they would cost virtually nothing. Similarly if carried out in Scotland under the National Health Scheme it would involve no expense.

36. Mr. Pirie relied on the case of

"Brink v The New P. G. Garm"

(1965) H.K.L.R. at P. 1001 where Huggins J said:

"If the operations are performed is it right that the damages should be assessed on the basis that the treatment will be given in Sweden? No one can deny the right of a patient to be treated by the surgeon of his choice but it does not follow that the whole of the cost must necessarily be reflected in damages payable to him. It is a question of what is reasonable in all the circumstances. "

37. Obviously in applying the test of reasonableness each case will turn on its own facts. I am satisfied that it is reasonable that the Plaintiff, the victim's father, returns to Glasgow to his wife and a job as quickly as possible. I also believe that it is reasonable that his daughter accompany him. It follows that it is reasonable when considering the cost of future operations and treatment to look at it as happening in the United Kingdom.

38. When considering whether it is reasonable for the future operations to be carried out privately there are two important considerations to bear in mind. Firstly it is not clear whether this young girl who has spent all her life in Hong Kong is even eligible for treatment under the National Health Scheme. No evidence has been adduced which answers authoritively this uncertainly. Even if she is, could she rely on having her operations carried out quickly and more particularly during school vacations? Dr. Wedderburn felt that even under National Health, if eligible, she would be accorded priority but would that priority extend to accommodating her during school vacations? It is probable that it might not. She has already lost a lot of schooling. It is important that she enter school as quickly as possible after her arrival in Scotland as she must learn English. I do not consider it unreasonable that she be allowed to have private medical treatment in the light of the question mark over her eligibility for National Health and the need to restrict any further disruptions to her education and I will, accordingly allow $50,000 which is roughly equivalent to £5,000 for future medical expenses.

Loss of Father's Earnings

39. Immediately on learning of his daughter's accident her father returned to Hong Kong where apart from a short return to renew his British passport, he has remained ever since. He claims loss of wages for a period of 14 months. In the circumstances I cannot envisage anything more natural than a parent rushing to his child's side. When asked why his wife did not come instead of him he replied that she would have been quite unable to cope with the various facets of the journey unaccompanied.

40. Is the father, then, entitled to claim for his loss of earnings? That question was considered by the Court of Appeal in

HO Kwai-loy v LEUNG Tin-hong

(1978) H.K.L.R. P. 72

where in giving the judgment of the Court Huggins J.A. said. "There is then question of the claim on behalf of the father for his loss of wages in visiting his son. The learned judge took the view that it was proper for the family, if I may so pat it, to mitigate its loss by making the mother attend to visit the hospital - not the father, who was earning a higher rate of salary. The view I take on this is that it was for the family to decide who ought to visit. It is arguable, of course, that the mother is the natural person to visit a very young child but I can conceive of cases where the family would prefer that the father should be the visitor and in the absence of any indication that this was unreasonable. I think that the judge was wrong in saying that the father should not be allowed to be the visitor and I would allow the wages which he has lost.

41. The father's presence in Hong Kong during the child's hospitalization was in my view highly desirable as the grandmother had, accordingly to the evidence, lost all confidence in going far from her village after the accident and was unable to visit the hospital. It is clear that it was necessary in the interests of this young girl and her recovery to have regular visits from a close family member. Subsequent to her discharge she had to attend pysiotherapy every alternative day and again it was her father who accompanied her for this treatment. I am not told how long this continued but I would have felt that it was reasonable to have the father in Hong Kong for a period of around nine months to assist her recuperation.

42. The principal laid down in HO Kwai-loy's case clearly envisages circumstances where a guardian can be compensated for loss of wages incurred as a result of the need to be with a child who is hospitalized. Some doubt was expressed as to whether the English Courts were in agreement.

43. In a recant (as yet unreported) decision of Mr. Justice Comyn in "Walker v Mullen" (The Times 19.1.84) it was held that a father's claim for lost earnings when he had remained in England with his injured son instead of returning to his job overseas was too remote from and not sufficiently attachable to his son's accident.

44. In that case the facts were somewhat different from those I have outlined here. The son in question was 18 years old and his mother was already with him. I cannot think of anything more harsh than if the law does not recognise and compensate the absolute need for this 9 year old girl to have had a close family member present to confide in and gain encouragement from during several operations, a long and painful recovery and a subsequent period of out-patient treatment.

45. I have indicated that I believe a period of nine months is reasonable for this claim and the only remaining question to be solved is the amount of wages actually being received by the father prior to his daughter's accident. He has stated that he received £90 per week after P.A.Y.E. tax and national insurance had been deducted. This was questioned in view of a certain letter which was exhibited from H.M. Inspector of Taxes who advised that the father's salary as disclosed on returns submitted was totally $245 between 6th April and 23rd May 1981.

46. The father in giving evidence claimed the returns had been falsely prepared by his employer to avoid paying over the tax collected from him.

47. Quite frankly I believed this man when he told the Court about his salary. I am satisfied that what he said was the truth and I calculate his loss of earnings as $35,100 ($900 × 39)

Other Special Damages

48. The remaining items of special damage are agreed and can be set out as follows:-

There will be interest on the general damages awarded for pain, suffering and loss of amenities at the rate of 2% p.a. from the date of service of the writ. There will be no interest on the sums awarded for loss of future earning capacity or future medical expenses but on the remaining special damages interest will be awarded at the rate of 6½% p.a. from the date of the accident to judgment.

51. The plaintiff is to have costs against the defendants to be taxed if not agreed and the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

52. Subject to the Director of Legal Aid's first charge on the damages they are to be paid to the Registrar for investment on the usual terms and with the usual power to make payments out.