WONG SIU KWAN v. ATTORNEY GENERAL

1987, No. A2946

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an action for damages for personal injuries and loss suffered by the plaintiff Madam Wong Siu-kwan when she was struck on the face by a sign-board that had become detached from a fence that surrounds premises occupied by the Wong Tai Sin Community Centre in Ching Tak Street, Wong Tai Sin, Kowloon. The action was brought against the Crown by virtue of the occupation of the premises by the Social Welfare Department and/or the City and New Territories Department which occupation is admitted.

2. The accident occurred on the 5th September 1985 at about 6 p.m. when the plaintiff was walking along Ching Tak Street, Wong Tai Sin, near the community centre with her two daughters whom she had just met from school. Weather conditions were bad for the No. 3 typhoon signal was hoisted whilst it was raining heavily. At the time of the accident the Royal Observatory had recorded maximum gusts of wind of about 87 km. per hour. As a result of the weather conditions, the plaintiff's umbrella had been blown away before the accident.

3. The plaintiff gave evidence that she had seen the sign-board which was made of plywood and measured 54 cm x 1 cm x I m about twenty days before the accident. The board was secured to the outer side of the wire mesh of the fence by pieces of wire to each of its four corners. She described the board to be an activities promotion board with a sun painted on it and words about summer activities for school children. The position of the board on the fence and the plaintiff at the time of the accident are marked on photograph 3 on page 9 of the bundle of documents. It would appear that the board must have become dislodged due to a gust of wind and flew into the plaintiff's face, for the plaintiff only had a brief glimpse of it before she was struck and became unconscious.

4. Damages are claimed on the grounds of negligence, nuisance and under the Occupier's Liability Ordinance. However, as the plaintiff was not a visitor to the centre, there can be no liability under, the Occupier's Liability rdinance.

5. Contributory negligence was originally alleged by the defendant but was abandoned at the trial. No witnesses were called by the defendant.

6. I found the plaintiff to be an honest and reliable witness. She knows the area where the accident occurred well as she goes there regularly to meet her children from school. I accept the plaintiff's description of the board and find that it was this object that struck her causing the injuries of which she complained. I am satisfied that the board had been attached to the fence for the period that she mentioned and draw the obvious inference that it became loose due to the prevailing weather conditions.

7. In order to succeed, the plaintiff must prove that the defendant knew or ought to have known that the board was attached to the fence and was likely to cause a danger to passers-by on the highway if it should become detached. The words upon the board are consistent with activities that are likely to have been conducted at the centre. As a result, I find that the sign-board was put up by the servants or agents of the defendant, In any event if I had not made this finding I am satisfied that the defendant knew of the presence of the board for its had been there for twenty days before the accident. If it had been placed there illegally, the defendant should have taken steps to have had it removed. Upon the facts the defendant owed a duty of care to the plaintiff as a person using the highway to ensure that the board did not cause a danger or nuisance. During a typhoon, the population are constantly entreated to secure all loose objects to prevent them from falling and to take in doors other objects that are likely to be blown away. In this case, I am satisfied that the defendant failed to ensure that the sign-board was properly or securely fixed to the wire mesh. The defendant is therefore liable in damages to the plaintiff on the grounds of negligence and nuisance.

8. I shall now deal with the quantum of damages to be awarded. The plaintiff is now aged 38 and was 34 at the time of the accident. She suffered a ragged laceration of the skin of the nose and right side of the face, a compound fracture of the nasal bones and swelling to the right eye. She was in hospital for 12 days during which time an operation was performed to the fractured nasal bone. The plaintiff was granted sick leave until the 13th October 1985.

9. The main injury suffered by the plaintiff was to her right eye which has resulted in a permanent visual disability of 70%. This disability, according to Dr. Heffernan in his report of the 26th February 1987 is equivalent to an 18% defect in the visual system and a 15% defect in the whole man. In addition, the plaintiff has a conspicuous depressed "U" shaped scar 6 cm. in length from the junction of the right lower eye-lid and cheek to the outer corner of the eye whilst the bridge of her nose is depressed and slightly deviated to the left. The tip of the nose tilts upwards and the nostrils are slightly asymmetrical. The cosmetic disability is permanent but Dr. Nicholson in his report of the 25th July 1986 said that plastic surgery would improve the right lower eyelid by 50-70% although a noticeable scar would always be present. He also stated that the bridge of the nose could be built up, but no correction was possible to the tilting up of the tip. By reason of the accident the plaintiff now has to wear spectacles which, to some extent, conceals her scars. The plaintiff testified that she suffers from watering of her right eye and blurred vision during wet weather. She also suffered some degree of pain until the beginning of this year.

10. Prior to the accident, the plaintiff worked as an assembler in an electronics factory and did some sewing work at home. Her work required very good eye-sight. The plaintiff's earnings at the electronics factory amounted to $1,658.90 per month and her work at home $600 per month. Her loss of income from the date of the accident to the 13th October 1985, during her period of sick leave, was agreed at $4,517.80. She was unable to return to work at the electronics factory die to her eye injuries, but obtained a job at a garment factory on the 1st November 1985 where she worked until the 31st May 1986. During this period she received a total income of $11,982. There was a partial loss of income for this period of approximately $1,800. However, she left this employment due to blurred vision and watering of her right eye. She did not resume outside employment until the 1st August 1988 when she obtained her present job as an office assistant at a monthly salary of $1,864.40. It would appear that the plaintiff had received medical advice to the effect that the work was imposing too much strain on her eyes. Nevertheless, during this period she worked at home making plastic flowers, earning about $500 per month. A claim for loss of wages was made for this period but in the absence of any medical evidence to support the plaintiff's allegation, I am unable to allow this claim. However, there was a difference between the earnings prior to the accident and the income from the 1st November 1985 of approximately $260 per month. Accordingly, for the period from the 1st November 1985 to the 1st August 1988, this loss will be $8,580. The plaintiff's present income is $1,300 per month plus double pay at Chinese New Year. Her loss of earnings from August 1988 until judgment, a period of eight months at the sum of $870 per month amounts to $6,960.

11. The defendant produced a list of jobs prepared by the Labour Department available for men and women who are physically disabled. Having regard to the plaintiff's visual disability, it was stated that she would be suitable for a job as a packer, cleaner or general worker for which there are vacanices available. However, without more detailed evidence as to what the jobs involve, I am unable to place any reliance upon this statement.

12. The multiplier for future loss of earnings was agreed at 8 years. I consider that the plaintiff has established a continuing loss of $870 per month for this period so the award will be $870 x 12 x 8 = $83,520.

13. Special damages for hospital expenses of $180 medical expenses $105.70, tonic food $1,800, MTR fares $120 and taxi fares of $165 were agreed. However, I shall disallow the claim for medical treatment and travelling expenses to China which were not justified. A sum was also claimed for the loss of the plaintiff's husband's earnings for one month after the accident when he looked after the children, but I have no evidence before me to award this. amount.

14. The special damages agreed therefore are as follows :-

15. The plaintiff suffered a serious injury to her right eye and has a permanent cosmetic disability. The cosmetic disfigurement could be corrected with plastic surgery, the present cost of which is estimated to be $19,500. However, the plaintiff has understandably not decided whether she wishes to undergo such surgery. In these circumstances, I propose to make no award for this estimated cost.

16. I am of the opinion that a global award for general damages should be made to include pain and suffering, loss of amenities and the cosmetic disability. The plaintiff states that she suffers from twitching, in rainy weather, soreness of the bridge of the nose and a stuffy nose whilst her reading and concentration begin to be affected after 20 - 30 minutes. She was acutely embarrassed after the accident about her facial appearance due to the scars so that she did not go out to dinners or attend banquets. However, although she no doubt still suffers some degree of self consciousness, this is not one of the most serious cases of cosmetic disability, particularly as her spectacles, to some extent, conceal the scarring. General damages in this case are within the serious category of between $135,000 - $180,000, see Lau Che-ping v. Hoi Kong Ironwares Godown Company Limited Civil Appeal No. 12 of 1988. In all the circumstances, I am of the opinion that the appropriate award for general damages is the sum of $150,000.

17. There will be interest of 2% upon the general damages for pain and suffering, loss of amenities and cosmetic disability as from the date of the accident and interest of 4% the special damages of $24,228.50 from the date of service of the writ. The plaintiff is entitled to costs and there will also be an order for her costs to be taxed in accordance with the Legal Aid (Scale of Fees) Regulations.