TSANG CHOI PING v. LI YIN LUN

HCPI 23/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 23 OF 2012

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ASSESSMENT OF DAMAGES

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Introduction

1. This is an assessment of damages following a scalding accident happened at the Plaintiff’s work place on 18 March 2010 in which she had sustained some very severe burn injuries.

2. Interlocutory judgment was entered against the Defendant on 25 May 2012, following the Defendant’s failure to give any notice of intention to defend the matter.

The Accident

3. The Defendant operated a restaurant in Tai Kok Tsui, Kowloon (“the Restaurant”).  The Plaintiff worked there as a general worker.  On 18 March 2010, at around 10:30 pm, the Plaintiff was requested to assist one of her co-workers to lift a full pot of boiling soy sauce from a stove to the ground. The pot was about 1.3 feet in diameter and about 1.5 feet in height.  It weighed about 100 catties.

4. In the process of transferring the pot and while the Plaintiff was about to lift it up, her co-worker had, suddenly and without warning, tilted her side of the pot, causing it to lose balance and the boiling contents split over the Plaintiff. The Plaintiff sustained very severe scalding injuries to her lower legs as a result (“the Accident”).

The Injuries

5. The Plaintiff’s injures were serious not only because the soy sauce that had been split over her was boiling, but also because she was wearing a pair of water boots at the time, thus causing the boiling soy sauce trapped inside the boots. This has no doubt made her injuries worse.

6. Immediately after the Accident, the Plaintiff was taken to the Accident and Emergency Department of Kwong Wah Hospital by ambulance.  A second degree burn of approximately 9% total body surface area was found over bilateral legs from knee down to foot dorsum mainly anteriorly.  The area was found to be very tender.  Fortunately, the distal neurovascular status of her feet was intact with normal toes movement.  The Plaintiff was given an analgesic injection, her wounds were dressed and 10 days sick leave was given with analgesics on discharge.

7. Thereafter the Plaintiff attended the general out-patient department at Li Po Chun General Out-patient Clinic in Tai Kok Tsui from 25 March 2010 onwards.  Her main complaint at the time included scald injury over dorsal site of both feet as well as medial aspect of right foot.  The diagnosis given was “scald both feet” (sic).  Examination at the time revealed scald wound with blister formation and pus discharge.  She was noted to be walking with pain by the doctors. 

8. The Plaintiff attended follow-up treatment and for dressing in the out-patient clinic between 25 March 2010 and 18 May 2010.  She was granted sick leave from 25 March 2010 to 20 May 2010 by the clinic. 

9. The Plaintiff then attended the Yau Ma Tei Jockey Club General Out Patient Clinic.  When first attended the clinic on 3 April 2010, she was found to have diffuse scald over both lower legs with no sign of infection.  She was treated with dressings and 7 days sick leave was given to her.  She was then followed up at the clinic for one more time on 21 May 2010 where 3 further days of sick leave was given to her.  Her wound was noticed to have healed well at the last consultation.

10. The Plaintiff was granted sick leave from 18 March 2010 to 23 May 2010.

11. On 23 March 2011, the Plaintiff attended the Employees’ Compensation (Ordinary Assessment) Board where she was assessed to have suffered from 5% of loss of earning capacity as a result of the scald injury sustained by her in the Accident.

12. On 20 September 2011, the Plaintiff was examined by Dr Ian Nicolson, a specialist in plastic surgery, who was appointed by her solicitors.  In his report of the same date, Dr Nicolson recorded the following complaints:

(1)  Pain and discomfort in the scars in her right foot and occasionally in the left foot.  She could not walk or stand for prolonged periods and when sitting, she periodically must elevate her feet;

(2)  Occasional cramps in her feet at night;

(3)  Itch and discomfort in the scars in her right foot and tightness in the scars; and

(4)  Ugly scars on her feet and she always have to wear socks in order to conceal her scars.

13. Examination carried out by Dr Nicolson revealed the following scars on her lower limbs:

“Right Leg

- there is faint hyper-pigmentation over the anterior aspect of lower thigh, knee and lower leg consistent with healed scald injury. The skin is soft and pliable;

Right Foot

- conspicuous ugly scars are present on the dorsum and lateral aspect of the foot and toes;

- in the proximal 2/3 of the dorsum the scar is mildly pigmented, soft and pliable;

- in the distal 1/3 the scar measures 9.5 x 7 cm and is raised, thickened and darkly pigmented with mild active pinkish hypertrophic scar in parts;

- the thick scar extends over the dorsum of the 3^rd toe as well as the adjacent aspect of the 2^nd and 4^th toes;

- flexion of the toes lacks 30°. When flexed the scar pulls on the skin of the proximal foot;

- two mildly active reddish thickened bands of hypertrophic scar are present on the medial and lateral aspects of the foot measuring 13.5 x 0.8 cm and 11.5 x 0.7 cm.

Left Leg

- faint hyper-pigmentation is present over the anterior aspect of the lower leg;

- scattered areas of dark hyper-pigmentation are present over the dorsum of the foot;

- the skin is soft and pliable and no contractures are present;

-   there is a full functional range of movement. ”

14. Dr Nicolson opines that the Plaintiff has permanent cosmetic disability as a result of her burn injury.  The scars of her right foot became hypertrophic subsequent to their healing.  It was noted by Dr Nicolson that the Plaintiff had tried to return to her part-time heavy work on 1 July 2010, which was less than 6 weeks after the expiry of her sick leave period.  However, she had to resign 2 months later because she could not cope with the heavy nature of the work.  Dr Nicolson is of the view that it would be reasonable to assume that the Plaintiff was developing hypertrophic scars which would progressively interfere with her ability to perform heavy work.  It has been reported that the hypertrophic scars were mostly stable at the time of examination though it was still mildly active in parts.

15. Dr Nicolson considers that the Plaintiff would be able to discharge her then duties as a dishwashing worker in a restaurant as her employer allowed her to sit down when washing dishes.  She is also considered to be fit to do other light kitchen duties.  However, it is Dr Nicolson’s opinion that the Plaintiff would be unfit for heavy duty work.  It is considered that the hypertrophic scars would improve gradually over the years.

16. Dr Nicolson recommended the following treatments for the Plaintiff:

(1)   Intralesion cortisone injections into the active scar;

(2)   Silicone gel to apply to the hypertrophic scar; and

(3)   Moisturizing creams for residual scars.

17. Dr Nicolson assessed the Plaintiff’s cosmetic disability at 1% and her loss of earning capacity at 7%.

18. Dr Nicolson remarked that it was unfortunate for the Plaintiff to return to heavy work in July 2010 when she was most likely would have been benefitted from pressure garment scar management at that time.  Dr Nicolson is of the opinion that it would not be unreasonable to assume that further sick leave would be given to her subsequently if requested in order to deal with her hypertrophic scars. 

19. I have been shown some photographs of the Plaintiff’s injuries both at the time not long after the accident happened, viz. March and May 2010 and at the time when she was examined by Dr Nicolson in September 2011.  They showed some rather disturbing images of the Plaintiff’s feet being severely disfigured by the Accident.  The photographs taken during the earlier period showed serious swollenness and what appeared to be the early stage of formation of scars.  The photographs taken during Dr Nicolson’s examination showed some very conspicuous and ugly scars and pigmentation of the skins on both feet, particularly on the right one.  

The Plaintiff’s Claim

20. Under the Re-Revised Statement of Damages filed on behalf of the Plaintiff, she makes a claim for slightly over HK$1.5 million plus interest.

21. To support her claim, the Plaintiff has filed one witness statement and one supplemental witness statement in this case.  At the assessment hearing, she adopted the contents of those statements as part of her evidence.  She also gave evidence before me to supplement some of the matters stated in those statements.

22. I find the Plaintiff a simple yet truthful witness.  Despite her nervousness and obviously being overwhelmed by the occasion, she was able to give clear and cogent evidence before me.  In some of the matters where she could have exaggerated, she has chosen not to do so.  Even though the Defendant has chosen not to enter any appearance in the present proceedings, including at the assessment hearing, the Plaintiff and those representing her have only put forward what I consider to be a fair and modest claim. 

23. Having said that, I am conscious of the fact that the Plaintiff’s evidence went unchallenged due to the Defendant’s absence at the assessment hearing.  However, I do not think the Plaintiff, as well as those representing her, has taken advantage of that in any way.

24. Hence, I would accept her evidence, including matters stated in her 2 witness statements. 

Quantum of Damages

25. I now turn to the individual heads of claim under the Re-Revised Statement of Damages.

(A) Pain, suffering and Loss of Amenities (“PSLA”)

26. As stated, the Accident resulted in some unsightly and conspicuous scars over her legs and feet.  She also developed hypertrophic scars over her right foot which affected her mobility and her ability to discharge her heavy work.

27. The Plaintiff is a divorced woman who had 2 jobs at the time of the Accident.  She lived with her 4 children and had to look after them financially, only with limited help from her ex-husband.  This left her with very little time for any outside interest. 

28. The Plaintiff stated in evidence that when the Accident happened, she was wearing water boots because of her work.  Part of the boiling soy sauce split into the boots that she was wearing at the time.  It is not difficult to imagine the excruciating pain she must have experienced at the time. 

29. She also said that after the Accident, she walked with pain due to the blister formation and pus discharge.  Besides, during the time when she was receiving dressing to her wounds, which covered a large area of her body, she had to tolerate great pain on each occasion.  This lasted for about 2 months and was done on a daily basis.  Each time when the wound was dressed, her skin on the affected area was pulled and great pain was caused.

30. She continues to experience pain and discomfort in the scars in her right foot and occasionally on her left foot.  She cannot walk or stand for any prolonged periods.  While sitting, she periodically has to elevate her feet. She also suffers from occasional cramps in her feet, itch and discomfort in the scars in her right foot.  She feels the scars are tight.  She has to put on socks to conceal the ugly scars on her feet.

31. Ms Julia Lau, Counsel for the Plaintiff, referred me to the following cases in her submissions which she says provided useful guidelines for the assessment of the general damages award under PSLA: Leung Yuk Kwan v Maple Professional Beauty Centre Ltd (2002) HCPI 274 of 2002 (Master de Souza; 4 December 2002); Wong Po Kin v Hopewell Construction Co Ltd & others (2003) HCPI 406 of 2001 (Master Lisa Wong; 15 January 2003); Cheang Kam Ian v Hong Kong Prime Printing Co (2000) HCPI 143 of 1998 (Hon Suffiad J; 13 January 2000); Wong Tung Ming v Kwok Chiu Hung & Others (1999) HCPI 928 of 1995 and HCPI 88 of 1997 (Deputy Judge Woolley; 29 September 1999);  Leung Pui Yiu (an infant suing by her father and next friend Leung Chi Ming) v Wong Yin Kuen & others (2001) HCPI 453 of 2000 (Hon Seagroatt J; 18 May 2001); Leung Hing Sum v Yau lee Construction Co Ltd (2001) HCPI 422 of 2000 (Master M Yuen; 12 October 2001); Achacoso, Warly Cabaneros v Liu Man Kuen (2004) HCPI 121 of 2001 (Master K H Hui; 11 June 2004); Iqbal Zafar v Hong Yip Service Co Ltd & another (2005) HCPI 809 of 2004 (Deputy High Court Judge Saunders; 7 October 2005).

32. I find the injuries sustained by the Plaintiff and the pain and suffering experienced by her are more serious than the injuries suffered by the victims in Leung Yuk Kwan (2002), Wong Po Kin (2003), Cheang Kam Ian (2000) and Leung Pui Yiu (2001) but less serious than those in Wong Tung Ming (1999) and Leung Hing Sum (2001). 

33. I would place the Plaintiff’s injuries just below the “serious injuries” category.  Having taken into account of the effects of price inflation and other factors since the case of Chan Pui Ki v Leung On & Another [1996] 2 HKLR 401, I am of the view that a reasonable award for PSLA will be at $400,000.

(B) Pre-trial Loss of Earnings

34. The Plaintiff had 2 jobs at the time of the Accident. 

35. In her first job, she was employed by Yau Hing Food Processing (“Yau Hing”), a noodle manufacturing company, as a general worker from 7:30 am to 12:30 pm each day.  She worked 30 days a month and earned a monthly income of $4,300.  Her main duty with Yau Hing included delivery of the noodle products by handcart from its workshop to their customers in the same district on foot. The average weight of the products would exceed 30 kilograms and the Plaintiff would have to handle all that by herself.

36. Her second job was with the Defendant where she was employed as a general worker from 3:00 pm to 12:00 am each day at an hourly rate of $30.  She worked an average of 9 hours per day and 30 days in a month, thus making an average of $8,100 per month.  Her duties at the Defendant’s restaurant included delivery of food from the wet market to the restaurant everyday at around 3:00 pm; clean and cut up the fresh produces; prepare the food and soup for the hotpot; serving the customers by delivering the cooked food from the kitchen to the customers’ tables; and carrying out cleaning work at the restaurant.  This job required a lot of standing and walking around the restaurant as it was a very busy restaurant.

37. Thus, the Plaintiff was earning an average of $12,400 ($4,300 + $8,100) per month from her 2 jobs at the time of the Accident.  

38. I have no difficulty in accepting the Plaintiff’s evidence on this for two reasons.  First, her income and terms of employment with Yau Hing are supported by a letter written by her employer dated 2 December 2010.  Second, the Plaintiff being a single parent who had to look after 4 children, some of them were still at school at the time, would need that kind of income in order to support her family.

39. The Plaintiff claims that a few weeks after the expiry of the sick leave granted to her by the doctors at the public hospitals, she returned to work for Yau Hing on 1 July 2010. 

40. I accept her evidence when she said that she was not able to carry out her pre-accident duties with Yau Hing due to the pain, itchiness and discomfort in her injured areas.  In particular, the scars felt tight when she was walking or standing.  Further, the scars would prevent her from standing or walking for long hours as well as from lifting heavy weight.  Given the extent of the scars on both of her feet, I do not find that surprising at all.  This is consistent with Dr Nicolson’s opinion that it was unfortunate for her to return to heavy duty in July 2010 when she was most likely developing hypertrophic scars. 

41. Having seen the Plaintiff in person, she struck me as a very hard working individual who would not like to rely on the Government or others for livelihood.  Hence, as soon as she felt physically able to, she tried her best to return to work. 

42. As explained in the letter from Yau Hing, she tried to return to her pre-accident job with them for 2 months from 1 July 2010 onwards.  However, she was not able to cope with her duties due to the injuries.  She left their employment on 31 August 2010.

43. The Plaintiff did not return to work for the Defendant after the Accident.  She said that she could not do so because she did not think she would be able to cope with the demands of that job which required long hours of standing and walking and lifting of weight.  In my view, that is a perfectly reasonable explanation and I would accept the same.

44. Instead of working for the Defendant, from about September/October 2010 onwards, the Plaintiff started to work for various restaurants as a dish washing worker.  Due to her injuries, she could only sit down to carry out her duties. At that time, she was only able to find such jobs on a part-time basis as she was not able to carry heavy weight or using handcarts to push heavy items. 

45. During the period from September/October 2010 to March 2011, the Plaintiff was working as part-time dish washing worker for various food outlets, earning an average monthly income of around $2,800 only.

46. From 1 March 2011 onwards, the Plaintiff started to work for Yiu Kee Wonton Noodles Shop (“Yiu Kee”) as a dish washing worker.  She started on a part-time basis at the statutory minimum wage of $28 per hour.  She was able to work on average of 5 to 6 hours per day only at the time, earning an average of around $4,300 per month. 

47. During the period from 1 August 2011 to January 2012, the Plaintiff did try to work on a full-time basis for Yiu Kee.  She worked for 26 days per month, from 12:00 noon to 11:00 pm each day, with 2 hours break in between. She earned an average of around $8,000 during that time.

48. However, she found that to be too much eventhough her employer had allowed her to sit down to carry out her duties.  Due to the pain in her legs, she was not able to discharge her duties as a dish washing worker on a full-time basis.  Instead, she started to work for Yiu Kee on a part-time basis, working 5 to 6 hours per day and on average 26 days per month.  She was able to earn around $4,300 each month only during this period.

49. The above working history and earnings with Yiu Kee are supported by a number of memos prepared and signed by the proprietor of Yiu Kee.  I have no difficulty to accept that they are the true records of what she earned during the relevant periods stated.  If anything, I admire the Plaintiff’s efforts in trying to return to whatever work she could find – whether part-time or full-time – within the limits of her injuries in order to mitigate her loss. Given the extent of her hypertrophic scars, it is only to be expected that she would find it difficult to work on a full-time basis.

50. In my judgment, the Plaintiff is entitled to the following amount by way of pre-trial loss of earnings:

From 18 March 2010 to say 9 May 2013 (37.5 months)
$12,400 x 37.5	$465,000
Less earned income
July 2010 to August 2010
($4,300 x 2)	$8,600
September 2010 to February 2011
($2,800 x 6)	$16,800
March 2011 to July 2011
($4,300 x 5)	$21,500
August 2011 to January 2012
($8,000 x 6)	$48,000
February 2012 to May 2013
($4,300 x 15.5)	$66,650
	$303,450

51. She will be entitled to 5% MPF contribution from her employer on the above amount:

  $303,450 x 5% = $15,173

52. Hence, I find the pre-trial loss of earnings, including the loss on the MPF contribution, at $318,623. 

(C) Future Loss of Earnings

53. Based on the opinion of Dr Nicolson and what the Plaintiff has told the Court in evidence, I have scant doubt that the injuries sustained by her will affect her earnings in future.  In fact, her much reduced income in the past few years since returned to work reflects this.

54. I accept her evidence when she says that she used to have 2 jobs before the Accident and now only manages to work as a part-time dish washing worker for Yiu Kee.  I find this was as a direct result of the injuries sustained by her in the Accident.

55. Prior to the Accident, the Plaintiff had enjoyed good health and was used to strenuous and heavy work.  She also needed to stand or walk around for long hours in her jobs.  She can no longer do these in future due to the injuries sustained by her in the Accident.

56. The Plaintiff claims that had it not been for the Accident, she probably would continue to work for both Yau Hing and the Defendant until her mid-70s. She told the Court that she has seen many dish washing workers who are still working in their 70s. 

57. I am not convinced that she can work until her mid-70s, as that will depend on a lot of other factors like her general health condition and the economic situation in Hong Kong. However, I have no problem in accepting the fact that the Plaintiff will at least able to work until she reaches 70 as it is not uncommon to see dish washing workers in restaurants in Hong Kong who are still working in their late 60s or early 70s.  The Plaintiff impressed me as a very hardworking and frugal person.  She has very good incentive to work as long as her health allows her as her children are still living with her and partially depending on her.  She also wants to work until such a time when she can save up enough money to buy her own property for her retirement. 

58. The Plaintiff was 58 years old at the time of the Accident.  She is now 61 years old.  In my view, a multiplier of 4 would be appropriate in this case after taking into account of the recent decision in Chan Pak Ting v Chan Chi Kuen and Chan Yiu Fai Joe (2013) HCPI 235 of 2011 (Bharwaney J ; 7 February 2013). 

59. The Plaintiff used to earn $12,400 a month in her 2 jobs.  Now she is only able to earn $4,300 per month.  On top of that, she is entitled 5% as MPF contribution from her employer.

60. Thus, I find the future loss of earnings, including the loss of MPF contribution as follows:

 ($12,400 - $4,300) x 12 x 4 x 105%   $408,240

(D) Loss of Earning Capacity

61. The Plaintiff’s has had experienced difficulty in holding down any full-time employment since returning to work after the expiry of the sick leave period.  She also has to change jobs often due to her disabilities.  At present, the Plaintiff is able to cope with the demand of her dish washing jobs mainly due to the fact that her present employer would allow her to sit down to carry out her duties.  It is clear that she can no longer able to do any jobs which require long hours of standing or walking like in her previous job with Yau Hing.  It is also clear that she is no longer able to carry heavy weight.

62. In my view, the Plaintiff suffers a handicap in the labour market in that she is less competitive than other able and healthy workers in the open labour market.  Had it not been for the kindness and understanding of her present employer, I am sure that she may not even able to hold down the present job for any lengthy period of time.

63. I am of the view that she is entitled to a separate award for loss of earning capacity to reflect the above disadvantages.  I consider a sum of $50,000, which roughly represents around 12 months of her present income from her part-time dish washing job is reasonable in the present case.

(E) Special Damages

64. The Plaintiff claims a total sum of $41,055 as expenses incurred as a result of the Accident.  They are either supported by receipts or in my view reasonably incurred, including a sum of $26,000 for tonic food in this case.

65. I will award the sum of $41,055 in full as special damages in this case.

(F) Future Medical Expenses

66. Dr Nicolson opines that the Plaintiff should undergo treatment, including intralesion cortisone injections into the active scars, silicone gel to apply to the hypertrophic scars and moisturizing creams for the residual scars.  The cost of such treatment has been estimated at $17,000 by Dr Nicolson.

67. On top of that, the Plaintiff would require about 5 days sick leave for such treatment.  The Plaintiff would suffer loss of income as a result.  That has been estimated at $840 ($28 x 6 x 5).

68. I am of the view that the above estimated sum for future medical expenses is reasonable and I will award a sum of $17,840 accordingly.

(G) Advance payment and employees’ compensation

69. The Plaintiff had received a sum of $7,992 and $34,585 respectively as advance payment and employees’ compensation as a result of the Accident for which she must give credit. 

Summary of Damages

70. In summary, in my judgment, the Plaintiff is entitled to the following sum by way of damages in this case:

(A)   PSLA	$400,000
(B)   Pre-trial loss of earnings	$318,623
(C)   Future loss of earnings	$408,240
(D)   Loss of earning Capacity	$  50,000
(E)  Special damages	$  41,055
(F)  Future medical expenses	$  17,840
LESS
(G)   Advance payment and employees’ compensation received	($42,577 )
	$1,193,181

71. The Plaintiff is entitled interest on the above awards.  There will be the usual award for interest at 2% for general damages from the date of issue of writ to date of assessment and at half of the judgment rate for special damages from date of accident to date of assessment and thereafter at judgment rate.

72. I shall also award costs in favour of the Plaintiff to be paid by the Defendant, such costs to be taxed if not agreed with Certificate for Counsel.  The Plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.