Tang Ho Hei v. Chan Po Mei

HCPI 1114/2014

[2020] HKCFI 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1114 OF 2014

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BETWEEN

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Before:  Hon Wilson Chan J in Court

Dates of Hearing:  9, 10, 14 and 17 October 2019

Date of Judgment:  5 March 2020

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J U D G M E N T

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A.  INTRODUCTION

1.This case arises out of a fire that occurred on 4 November 2011 (the “Fire”) in a 6-storey tenement building (唐樓) (the “Building”) situated at 107 Parkes Street, Jordan, Kowloon.

2.The plaintiff sustained serious burn injuries to 55% of her body surface area while she attempted to escape from her flat situated on the 3^rd floor of the Building to the roof. 

3.The defendant was the registered owner and occupier of the 5^th Floor and the Roof of the Building.

4.In a nutshell, the plaintiff’s case against the defendant is that the miscellaneous articles placed at the common stairwell outside the defendant’s flat on the 5^th floor obstructed the plaintiff’s escape path to the roof (as well as the firemen’s access to the roof), thereby causing and/or materially contributing to the serious burn injuries which the plaintiff suffered.

A1.  Layout of the Building

5.The Building contains 6 storeys which are served by a single staircase running from the Ground floor to the roof.

6.The Occupation Permit for the Building was issued in 1964, stipulating that the Ground floor is to be used as a shop for non-domestic use and the 1^st to 5^th floors are for domestic use, with one tenement for each floor. 

7.At the material time of the Fire, the Ground floor was unoccupied, while the owner of the 1^st floor premises rented it out for use as a hair salon and beauty parlour which traded under the name of “Tinzi Hair and Beauty Salon”.  The remaining floors (2^nd, 3^rd, 4^th and 5^th) were used as domestic residences.  The plaintiff lived with her parents on the 3^rd floor.  The defendant was the registered owner and occupier of the 5^th floor and the roof of the Building.

8.At the material time of the Fire, there were no fire prevention installations (such as smoke stop doors and protected lobbies to the adjoining staircases), as there were no such requirements at the time the building plan was submitted to the Buildings Department in 1961 and the Occupation Permit was granted in 1964.

9.A cross-section diagram of the Building is attached to this Judgment as “Annexure I”.  References in this Judgment to the landings (L1 to L13) and the staircases (S1 to S13) in the Building are those illustrated in Annexure I.

A2.  The Fire

10.The Fire Services Department (“FSD”) conducted a joint investigation of the Building with staff from the Government Laboratory, the Electrical and Mechanical Services Department and the Buildings Department on 7 November 2011 shortly after the Fire.

11.The FSD subsequently compiled a Fire Investigation Report (“FSD Report”), which provides useful insight into the circumstances of the Fire.

12.As to the status of such a report, the following guidance was given by Bharwaney J in So Kai Hau v YSK2 Engineering Co Ltd [2018] HKCFI 1803, at §35:

“… It is the norm in personal injury cases to direct that such investigation reports are to be adduced into evidence without calling the makers thereof. Such a direction was given in these proceedings. If the findings reached by the investigators are disputed, parties can seek a direction for the makers of the reports to be called and also seek leave for expert evidence to be adduced to challenge such findings. If the challenge has substance, the court may grant the leave that is sought. No such challenge was made by Wellgo in the course of the case management of these proceedings. I accept these reports as hearsay evidence that was properly adduced before me. Having considered them carefully, and having given to them the weight that they deserve, I make the following findings based on these reports: …”

13.The FSD’s rescue response to the Fire which occurred in the Building on 4 November 2011 was summarised in paragraph 5 of the FSD Report as follows: –

(1)  At 21:59, the FSD received a call reporting the outbreak of the Fire in the Building.

(2)  At 22:03, the fire brigade arrived at the scene.

(3)  Upon arrival, smoke and fire were observed billowing from a row of top-hung windows on the 1^st floor of the Building, and so a first aid hose reel jet was immediately applied to cover the row of windows on that floor.

(4)  When the fire brigade entered the 1^st floor unit, they discovered that the ceiling and left-hand side of the unit were alight.

(5)  Meanwhile, another fire crew carried out search and rescue of the upper floors of the Building, and discovered that some electrical wiring was burning in the stairwell from the 1^st to 2^nd floors as well as a melted electric lamp shade in the stairwell from the 4^th to 5^th floors.

(6)  When the fire crew entered the units on the 2^nd and 3^rd floors, nobody was found inside.

(7)  At around 22:30, the fire crew discovered an elderly woman, Madam Au Shui-ying, inside the unit on the 4^th floor and escorted her to the street level.

(8)  The fire crew continued to search the upper floors.

(9)  At around 22:20, the fire crew heard someone shouting for help on the roof.

(10)  The fire crew then immediately went to the roof, where they discovered 2 females and 1 male (ie the plaintiff, Mrs Ng and Mr Ng), who all suffered from various degrees of burns but were still conscious.

(11)  Subsequently, the ambulance crew went up to roof with the necessary burnt kit and life resuscitation equipment.

(12)  The plaintiff and Mrs Ng were taken by different ambulances to Queen Elizabeth Hospital (“QEH”), while Mr Ng was conveyed by ambulance to Kwong Wah Hospital.

(13)  Mr and Mrs Ng (who had suffered 2^nd degree burns covering around 60-70% of their body surface area) subsequently passed away in hospital due to complications resulting from the extensive burn injuries which they had sustained.

B.  ISSUES AT TRIAL

14.In light of the development of the case and the evidence adduced before the court, as well as the parties’ stances which crystallized over the course of the trial (including the amendment of the defendant’s Defence which took place during counsel’s closing submissions), the issues that fall to be determined in the present case can be formulated as follows: –

In relation to liability: –

(1)  Did the obstruction by the articles in the staircase from the 5^th floor to the roof floor cause and/or materially contribute to the plaintiff’s injuries by delaying her escape and/or rescue and treatment?

(2)  Did the articles obstruct a “means of escape” within the meaning of section 14 of the Fire Services (Fire Hazard Abatement) Regulation (Cap 95F) (the “Regulation”)?

If liability is established, in relation to quantum: –

(3)  What amount of general damages should be awarded under the head of pain, suffering and loss of amenities (PSLA)?

15.In a nutshell, the plaintiff’s pleaded case can be encapsulated thus: after the Fire broke out at around 10 pm on 4 November 2011 from the 1^st floor of the Building, when the plaintiff was escaping to the roof of the Building, she was obstructed by the articles which the defendant had left (or allowed to have been left) in the staircase from the 5^th floor to the roof floor, which delayed her escape and prolonged her exposure to very high temperatures (as well as delaying the rescuers’ access to the roof), thereby causing/materially contributing to the serious burn injuries that she sustained.

16.As indicated in the defendant’s written opening submissions, the defendant does not advance a positive case in respect of the Fire.  The defendant’s case consists of putting the plaintiff to strict proof as to how her injuries were caused.

17.The defendant was convicted of the offence of “Obstructing means of escape” contrary to section 14(1) and 14(2) of the Regulation on 31 May 2012 at the Kwun Tong Magistrates’ Court under case number KTS 6509/2012.

18.In view of the defendant’s criminal conviction, the legal burden of proof is on the defendant (not the plaintiff) to prove that she did not leave (or cause/permit to be left) the articles in the staircase from the 5^th floor to the roof floor of the Building and that the articles did not obstruct the means of escape.

19.The defendant has plainly not been able to surmount this hurdle and has not discharged her burden.  In cross-examination, the defendant acknowledged that the articles were placed by her and her relatives in the staircase from the 5^th floor to the roof floor. 

20.It is also noteworthy that although it had been pleaded in her Defence, the defendant has not pressed her case in respect of the plaintiff’s alleged contributory negligence in her written opening submissions and during the trial.  In any case, I agree that there is no basis to make a finding of contributory negligence. 

21.At the trial, the plaintiff explained under cross-examination that before the Fire, she had never ventured up to the 5^th floor and the roof of the Building.  At the time of the Fire, she went down from her flat on the 3^rd floor to look for Mr and Mrs Ng on the 2^nd floor as she was very scared and wanted to look for adults.  When Mr and Mrs Ng attempted to go down from the 2^nd floor to the 1^st floor, they were unable to do so as the Fire was too intense.  After returning to their flat, Mr and Mrs Ng decided to escape by going up the staircase to the roof.  In such circumstances, the plaintiff cannot be blamed for following Mr and Mrs Ng up the staircase, even though in hindsight (and in calmer circumstances) one may question if the plaintiff ought to have acted differently.

22.Thus as stated above, in relation to liability, the main issue is one of causation – whether the obstruction by the articles in the staircase from the 5^th floor to the roof floor of the Building caused/materially contributed to the burn injuries that the plaintiff sustained. 

C.  DID THE OBSTRUCTION BY THE ARTICLES FROM 5^TH FLOOR TO ROOF CAUSE/MATERIALLY CONTRIBUTE TO THE PLAINTFF’S INJURIES BY DELAYING HER ESCAPE/RESCUE

C1.  Legal principles relating to causation

23.As explained by Sakhrani J in CMY v Tam Siu Wing [2008] 4 HKLRD 604 at §§20-21, it is well-established that it is sufficient for the plaintiff to show, on the balance of probabilities, that the defendant’s negligence has materially contributed to the plaintiff’s injury (ie it was not de minimis).  It is not necessary for the plaintiff to show that the defendant’s negligence was the sole cause of the plaintiff’s injury.

24.Further, in CMY (ibid) at §22, Sakhrani J cited with approval the following statement by Kirby J in Shorey v PT Ltd (2003) 197 ALR 410 at §41: –

“The principle of law is that a negligent defendant must take its victim as it finds her and must pay damages accordingly.”

C2.  The FSD Report and photographs

25.The FSD Report made the following findings: –

(1)  “The self evacuation progress of Mr. NG, Mrs. NG and [the plaintiff] to the roof was retarded when they reached 5/F level.  [The plaintiff] also claimed they had to double their effort to travel one floor up from 5/F to roof when compared with their progress from below 5/F.  The Team therefore opined that the floating obstructions deposited from 5/F to roof have played a part in retarding the escape of the casualties.” (§7.4.11)

(2)  “[The plaintiff] and the deceased decided to escape but they suffered from heat and smoke while they were escaping for life via the staircase.  It is indisputable that although they managed to reach the roof consciously but sustained various degrees of burns to their bodies during their course of escape.  This tallied with the situation revealed from the statement made by [the plaintiff] that the escape route was smoke logged when they were travelling upstairs.  Heat became more intense when they reached upper floors due to chimney effect.  In addition, the deposition of miscellaneous articles along the staircase from 5/F to roof might have impeded their way to roof as well as lengthened their exposure to heat and smoke.” (§8.2.2)

(3)  “Deformation of plastic materials found at upper floors indicated that the staircase temperature was intensively high (melting point of PVC ranges from 100°C to 260°C) and that such temperature is sufficient enough to cause severe damage to human body.” (§8.2.3)

(4)  “It is concluded that the cause to fatalities was due to burns and the associated complications inflicted on the casualties.  Their injuries were very likely to be inflicted during the course of evacuation via the staircase, which might have been exacerbated by floating obstructions from 5/F to R/F” (§8.2.5) (emphasis supplied)

(5)  “The deposition of miscellaneous articles along the staircase from 5/F to roof have impeded the casualties’ way to roof as well as lengthened their exposure to heat and smoke” (§9.1) (emphasis supplied)

(6)  As the firefighters made their way up the staircase, they “noticed that some electrical wiring was still burning at the staircase from 1/F to 2/F” and “also noticed melted electric lamp shade fallen on the ground at 4/F and 5/F staircase.” (§5.7)

(7)  “A post-fire inspection found quantities of miscellaneous articles placed along the staircase from 5/F to R/F that constituted a fire hazard.  The responsible person was located and served with a fire hazard abatement notice (FHAN) pursuant to s.3 of the Fire Services Ordinance, Cap. 95F, Laws of Hong Kong.  In addition, legal action was also taken against the same person for the offence of s.14(1) of the Fire Services Ordinance, Cap. 95F, Laws of Hong Kong.” (§4.6)

26.The photographs taken by the FSD in the immediate aftermath of the Fire (at 00:37 on 5 November 2011) provide this court with accurate, reliable and objective visual evidence as to the state of the staircase from the 5^th floor to the roof. 

27.I agree that the FSD Report and the photographs clearly support the plaintiff’s evidence that she and Mr and Mrs Ng had been delayed when they ascended the staircase from the 5^th floor to the roof floor, thereby lengthening the time that they took to make their way up the steps. 

28.I further agree that from the evidence, during the period of time when they were delayed in the staircase from the 5^th floor to the roof floor, the temperature in that area was very high and capable of causing severe burn injuries.

29.The FSD Incident Occurrence Record (with an explanation of the abbreviations) provides this court with a relatively accurate, reliable and objective timeline of events.  In particular: –

(1)  At 21:59, the FSD received a call about the Fire.

(2)  At 21:59, 4 fire engines (major pump, hydraulic platform, turntable ladder and Light Rescue Unit) were dispatched from Tsim Sha Tsui fire station.

(3)  By 22:04, the 4 vehicles had arrived at the scene.

(4)  At 22:10, a Search and Rescue Group was dispatched.

(5)  At 22:11, 3 further vehicles with Search and Rescue Groups were dispatched – a Multiple Purpose Vehicle from Mong Kok fire station, a Light Rescue Unit from Yau Ma Tei fire station and a Mobile Command Unit from Tsim Sha Tsui fire station.

(6)  At 22:16, the Light Rescue Unit from Yau Ma Tei fire station arrived at the scene.

(7)  At 22:21, the Search and Rescue Group (dispatched at 22:10) arrived at the scene.

(8)  At 22:21, the Mobile Command Unit arrived at the scene.

(9)  At 22:23, the plaintiff and Mr and Mrs Ng were rescued on the roof.

(10)  At 22:37, the Multiple Purpose Vehicle arrived at the scene.

30.At this juncture, it should be noted that 7 fire rescue vehicles had arrived at the scene by the time the plaintiff were rescued on the roof at around 22:23 (the first 4 vehicles had arrived at around 22:04, another vehicle at around 22:16, followed by 2 other vehicles at around 22:21).

31.The FSD Report noted at §6.1.4(iv) that according to the plaintiff, she had “only heard wailing of fire appliances siren after about 5 minutes upon their arrival on the roof”.

C3.  The plaintiff’s evidence

32.The plaintiff’s witness statement dated 16 January 2016 referred to and adopted her statement to the Police on 7 February 2012 and her statement to the FSD on 13 January 2012.

33.The plaintiff’s statements to the Police and the FSD were made shortly after the Fire.  I agree that these two statements may provide a more accurate account of the plaintiff’s recollection of the incident of the Fire.

34.The plaintiff gave oral evidence at the trial. She adopted the content of her witness statement and supplemental witness statement as her evidence.  I accept the plaintiff’s submission that her evidence during cross-examination was clear and cogent.  She gave her answers in a direct and straightforward manner.

The initial part of the escape

35.On 4 November 2011 at around 10 pm, the plaintiff was alone at home (in the 3^rd floor flat of the Building) revising.  Suddenly she heard a woman shouting.  The plaintiff opened the front door (but did not open the metal gate).  At that time, the lights in the staircase were on.  The plaintiff heard a woman (whom she came to realise was Mrs Ng) shouting that there was a fire and people should leave immediately.

36.At that moment, the plaintiff received a telephone call from her mother, who was outside but had found out about the Fire.  The plaintiff then left the 3^rd floor flat and went down the staircase to the 2^nd floor flat.  At this point, she was able to see the staircase clearly as there was not much smoke.  When she reached the 2^nd floor, she encountered Mr and Mrs Ng, who urged the plaintiff to enter their flat.

37.As explained by the plaintiff in cross-examination, she followed Mr and Mrs Ng’s instructions as she trusted them as adults.

38.After Mr and Mrs Ng and the plaintiff had entered the 2^nd floor flat, they equipped themselves with wet towels.  Mrs Ng then opened the front door, left the 2^nd floor flat and attempted to go down the staircase (with a wet towel covering her mouth). When they came out, there was no light at the landing and staircase.  Mrs Ng was at the front and descended 2 steps.  Mrs Ng turned around and said it was too dark and could not walk.  The plaintiff, Mr Ng and Mrs Ng returned to the 2^nd floor.  Mr Ng then suggested to ascend.  At this point, the plaintiff saw flames outside the window from the living room of the 2^nd floor flat.

39.The defendant contended in paragraph 6(3)(a) of the Defence that “the burn injury to [the plaintiff’s] body surface area was sustained not at or around the time when she reached the said common areas, that is the staircase between the 5^th Floor and the Roof of the Building or at all but was sustained at the common areas at or near the vicinity of the source of fire, that is the [1^st floor] Premises.” (emphasis supplied) 

40.However, from reading the plaintiff’s witness statements to the FSD and the Police, there is no evidence to suggest that the plaintiff did walk down from the landing at the 2^nd floor.  In her oral evidence, she said the three of them tried to go down the steps at S5 (by reference to Annexure I) but definitely had not reached L4.  She said in her evidence that she had tried to go down.

41.There is no evidence to suggest that Mrs Ng who was in the front had sustained serious burn injuries when she returned from the two steps.  They were able to return to 2^nd floor and discussed among themselves (see: plaintiff’s statement to the Police, §8).

42.If Mrs Ng had sustained very serious injuries at that point, it is more likely that she would have immediately fled with Mr Ng and the plaintiff up the staircase.  They did spend some time inside Mr and Mrs Ng’s premises after returning and then decided to ascend the staircase.

43.I agree that the defendant has not been able to adduce any positive evidence to support her speculative theory that the plaintiff’s burn injuries were sustained “at or near the vicinity of the source of fire, that is the [1^st floor] Premises”, apart from attempting to put speculative questions to the plaintiff in cross-examination.

The escape up the staircase from the 2^nd floor to the 5^th floor

44.The plaintiff stated that after Mrs Ng re-entered the 2^nd floor flat and told Mr Ng and the plaintiff that it was impossible to go down, Mr Ng suggested going up the staircase instead.

45.The plaintiff explained in cross-examination that before the Fire, she had never ventured up beyond the 3^rd floor (where she lived) to the 5^th floor or the roof.  Therefore, she did not know about the state of the staircase from the 5^th floor to the roof before the Fire.

46.The plaintiff and Mr and Mrs Ng left the flat and went up the staircase (which by then was dark), covering their mouths with wet towels.  Mr Ng was at the front (and led the way with a torch), the plaintiff was in the middle and Mrs Ng was at the back.

47.As explained by the plaintiff in cross-examination, although she did not feel hot, she was incredibly nervous at this point in time and so she did not pay particular attention as to whether it was getting hotter as she went up the staircase with Mr and Mrs Ng. 

48.In her witness statement to Police, the plaintiff described that when she ascended the staircase, she used her left hand to hold the wet towel, her right hand to hold the handrail of the staircase (see: plaintiff’s statement to the Police, §11).  She did not suffer serious scar injury on her right hand palm.  It can be inferred that the handrail was not very hot when she first ascended the staircase.

49.In her witness statement to the FSD, the plaintiff said she found it smoky, could not see the stairs, difficult and painful to breathe.

50.When the plaintiff reached the 5^th floor landing, she lost her footing and tripped, falling backwards and ending up on the landing between the 4^th and 5^th floors.  She dropped her phone and also lost her wet towel.  She was, however, able to get up and continue to walk up the staircase. 

51.The plaintiff was asked by the defendant’s counsel to estimate how long it took to ascend each flight of steps when she fled with Mr and Mrs Ng from their flat on the 2^nd floor up the staircase (before they reached the 5^th floor).  Although at the time the plaintiff did not count/look at her watch (as she was scared and her primary focus was on fleeing), she estimated, in retrospect, that it took her around 5 to 10 seconds to go up each flight of stairs, from one landing to another (ie half a floor).  The plaintiff explained that the staircase was already filled with smoke and it was pitch dark (as the lights were off) when she fled up the staircase with Mr and Mrs Ng from their flat on the 2^nd floor.  The plaintiff did not pay much attention to the temperature/heat.

The delay during the escape from the 5^th floor to the roof due to the obstructions created by the articles

52.When the plaintiff and Mr and Mrs Ng reached the 5^th floor, due to the presence of articles in the staircase, their path was obstructed and they were unable to ascend at the same pace. Therefore, it took them longer to go up the staircase from the 5^th floor to the roof floor compared to the previous floors (see: plaintiff’s statement to the Police, §14; plaintiff’s statement to the FSD).  I agree that the plaintiff’s evidence about the delay and the obstruction is consistent. 

53.The plaintiff explained that while fleeing to the roof in her state of anxiety, she perceived it to be a very long period of time, and she did not feel that it was easy going up from the 5^th floor to the roof floor.

54.Mr Ng (who was leading the way in front) had to move aside the articles in order for them to go up the staircase from the 5^th floor to the roof floor (see: plaintiff’s statement to the FSD; plaintiff’s statement to the Police, §14).

55.When asked by the defendant’s counsel to give an approximation of how much longer it took to go up the staircase from the 5^th floor to the roof floor compared to the previous floors, the plaintiff’s answer was that it took around twice as long.  There were also points at which she had to stop because of the obstructions while going up the staircase from the 5^th floor to the roof floor.

56.When the plaintiff was challenged by the defendant’s counsel that there appeared to be an inconsistency with what she had stated in paragraph 6(d) of her witness statement, namely that it had taken around 15 to 20 minutes to go up the staircase from the 5^th floor to the roof floor, the plaintiff frankly and honestly explained that she was filled with anxiety at the time and did not precisely count how much time she spent on the staircase from the 5^th floor to the roof floor.  I accept the plaintiff did not try to exaggerate or bolster her factual account under cross-examination.

57.I further accept the plaintiff’s submission that perception changes when faced with such a traumatic experience, particularly when the focus is on fleeing and saving one’s life.  It is therefore entirely understandable that the plaintiff’s perception of time at such a critical moment when she was trying to negotiate her way through the obstructions by the articles in the staircase from the 5^th floor to the roof floor to save her life was not perfectly accurate.  Despite minor inconsistencies, the tenor of the plaintiff’s evidence is clear – she and Mr and Mrs Ng did experience a period of delay when they were fleeing up the staircase from the 5^th floor to the roof due to the obstructions created by the articles.  Any minor discrepancies should not call into question the plaintiff’s credibility.

58.The plaintiff explained that she heard the sound of fire engines arriving at the scene shortly after she and Mr and Mrs Ng eventually reached the roof.  According to the plaintiff’s witness statement to the FSD, after her arrival at the roof, she found her body very painful and hot.  After around 5 minutes, she heard the sound of the fire engines. 

59.During cross-examination, the plaintiff was taken to the FSD Incident Occurrence Record by the defendant’s counsel, which stated that fire engines first arrived at the scene at around 22:04. Based on this, it was suggested to the plaintiff that a period of only around 4 to 5 minutes had lapsed from the time when she received her mother’s telephone call (at around 22:00) until the time when she reached the roof of the Building. 

60.I agree with the plaintiff’s submission that the underlying premise of this line of questioning is fundamentally flawed.  As mentioned at paragraphs 29 and 30 above, according to the FSD Incident Occurrence Record, after the first 4 fire engines had arrived at the scene at around 22:04, another fire engine reached the scene at around 22:16, followed by 2 other vehicles at around 22:21.  The plaintiff and Mr and Mrs Ng were recorded to have been rescued at 22:23.  Therefore, bearing in mind the plaintiff’s description of the events and the fact that she only heard the sound of fire engines after some 5 minutes on the roof, the sound of the fire engines that the plaintiff heard after reaching the roof was more likely to be that of the vehicles arriving at 22:16 or 22:21. 

61.Bearing in mind the plaintiff’s account of going down to 2^nd floor after picking up her phone and keys, meeting Mr and Mrs Ng, retrieving wet towels, going into the premises and returning to the premises and the decision to ascend the staircase, the slip and fall of the plaintiff, the waiting at the roof and the hearing of the sound of fire engines, I agree that it is consistent with the plaintiff’s account of the considerable delay that they had experienced while escaping up the staircase from the 5^th floor to the roof floor.

The injuries suffered by the plaintiff during the delay while escaping from the 5^th floor to the roof

62.On reaching the roof of the Building, the plaintiff felt that her body was very hot.  She felt pain on her whole body and was very thirsty.  She also saw that her skin was peeling off (see: plaintiff’s witness statement, §8; plaintiff’s statement to the Police, §15; and plaintiff’s statement to the FSD).

63.The plaintiff stated at paragraphs 3 and 4 of her supplemental witness statement that:

(1)  Due to the obstruction on the left hand side when she passed the 5^th floor on her way up the staircase to the roof of the Building, she was unable to keep close to the wall.

(2)  She suffered more severe injuries on the right side of her body compared to the left side.

64.At this juncture, it is noteworthy that Ms Ho Mo Sin (the defendant’s daughter who resided in the 5^th floor flat at the time of the Fire) acknowledged in cross-examination that she herself had to walk by the handrail when ascending/descending the staircase on and around the 5^th floor because of the articles placed next to the wall.

65.As will be discussed below, the opinion of the fire expert is that hot air rose through the stairwell, which meant that it was hotter by the handrail compared to by the wall.  The chimney effect created by the rising hot air led to very high temperatures in the staircase from the 5^th floor to the roof floor.  Moreover, as the middle of the stairwell (and thus the chimney) was blocked with stuff around the 5^th floor, the hot air had to move around up the staircase, increasing the plaintiff’s exposure to the very high temperatures.

66.The chimney effect is borne out by the more serious injuries which the plaintiff suffered on the right side (ie the side closer to the handrail) compared to the left side.

67.The plaintiff said that she was facing the roof when she went up the staircase (S13) from L12 to L13 (the roof floor).  I agree that the effect of the heat would have been greater on the back of the plaintiff’s body than on the front. 

68.It should also be borne in mind that the plaintiff was in between Mr and Mrs Ng (both of whom acted, to a certain extent, as human shields). 

69.This would perhaps explain why the plaintiff was fortunate in that the burn injuries on her face was relatively minor (compared to the rest of her body).

C4.  The fire expert’s evidence

70.The plaintiff’s fire expert, Mr Stephen Magnus-Hannaford’s opinion can be summarised as follows: -

(1)  The temperatures reached at the top of the staircase were influenced by 2 factors, namely (a) the chimney effect, and (b) the fact that there was a door missing at the top of the staircase out onto the roof (§4.1.3).

(2)  The chimney effect is caused by convection currents with rising hot air (§4.1.4).

(3)  The chimney effect had a significant influence on the fire inside the 1^st floor hair salon only when the hair salon front door was open and/or the Fire was burning in the staircase, thus assisting the Fire’s growth (§7.3.2).

(4)  As a result of the chimney effect, smoke and hot gases would rise up the centre of the stairwell, so it would be hotter close to the handrail (near the vertical gap in the middle of the staircase) than at the outer wall (§7.1.3).

(5)  As hot gases rise to the top of the stairwell, it would likely be hotter at the top of the stairwell than on lower floors, and there would likely be a temperature gradient at the top of the stairs (with it being hotter close to the ceiling than close to the floor) (§§7.1.4-7.1.5).

(6)  However, as the doorway at the top of the stairs was open, the smoke and hot gases were able to vent out of the Building, thus reducing the temperature build-up (§7.1.7).

(7)  Accordingly, the temperature gradient at the 5^th floor would have been in the range of 40°C to 250°C – cooler towards the top of the staircase because the heat was not able to build up due to the missing door, but hottest at the handrail (§7.5.2).

(8)  The head of the staircase would likely have been no more than 150°C at high ceiling level, while being significantly less than that at low floor level.  Away from the handrail area, the low level temperature would possibly be in the range of 40-50°C (§§7.1.8-7.1.9).

(9)  The combustible range of the plastic bags on the 5^th floor passageway was probably greater than 300°C (§§7.7.1 and 7.8.1).

(10)  There is no evidence that a significant explosion occurred (§7.9.1).

71.As explained by Mr Magnus-Hannaford at the start of his oral testimony, when he conducted a site visit of the Building after arriving in Hong Kong shortly before the trial, he observed that the lower row of windows on L2 had been covered up and blocked (and was not visible from the outside).  Based on his visual observations of the rear of the Building, Mr Magnus-Hannaford was able to deduce that although the other landings were paired (with a lower row of windows with fixed panes of glass that could not opened and an upper row of window with a middle window that could be opened), L12 did not have an upper row of windows (and only had a lower row of windows that could not be opened).  Further, it was likely that the height of the ceiling at L12 was lower than the height of the landings at lower floors. The lack of an upper row of windows that could be opened and the lower ceiling height at L12 meant that there was a greater degree of heat build-up at the top of L12 from the Fire.

72.Mr Magnus-Hannaford agreed with the findings in the FSD Report.

73.Mr Magnus-Hannaford was also taken to the photographs taken by Ms Ho Mo Sin.  Mr Magnus-Hannaford observed that items that were placed higher up appear to have been more deformed.  In relation to Photo 1, he observed that as the vertical gap in the middle of the stairwell was blocked with stuff, at that point the hot air would be moving around up the staircase around the chimney.  Air would be travelling horizontally up the stairway rather than up the middle.

74.I accept that this would have increased the plaintiff’s exposure to very high (and damaging) temperatures when she was obstructed by the articles in the staircase from the 5^th floor to the roof floor.

75.In all, I agree that Mr Magnus-Hannaford’s expert evidence clearly supports the plaintiff’s case.  He stated that it would be hotter at the handrail and at high level.  It would be hotter at the handrail than at the outside of the staircase (near the wall).  Due to the chimney effect (which was exacerbated by the stuff blocking the vertical gap in the middle of the stairwell, the lower height of the ceiling at L12 and the lack of an upper row of windows that could be opened at L12), the plaintiff was exposed to very high temperatures when she was on the staircase from the 5^th floor to the roof floor.

C5.  The plastic surgery expert evidence

76.Both experts agreed, at paragraph 25 of the Joint Medical Report that the plaintiff’s “injuries were the result of the burning effect of heat and inhalation of smoke” and that “Any delay in this hot environment could cause or exacerbate her burn injuries”. 

77.The plaintiff’s plastic surgery expert, Dr Ian Nicolson, stated in his oral evidence that it is possible that the plaintiff was protecting her face with her hands, hence there were more serious burn injuries and scars on the dorsum of the plaintiff’s hand compared to her face.

78.I accept that this factor helps to explain why the plaintiff suffered relatively less severe burn injuries and scars on her face as compared to the dorsum of her hand and other parts of her body.

79.Dr Nicolson explained the degree of burn is based on the heat and time of exposure, but it is not a matter of simple arithmetic, because as one burns with the deeper burns, the body takes away heat at a slower rate as circulation gets impaired.  The result is that one would then become more susceptible to heat and can burn at a lower temperature at a later time.  This would support the plaintiff’s case that the delay that she experienced in the staircase from the 5^th floor to the roof floor was a material contributing and causative factor to her burn injuries. As she had already been exposed to heat before she reached the 5^th floor, the prolonged exposure to high temperatures from the 5^th floor to the roof floor would have exacerbated her injuries, as her skin was susceptible to burning at lower temperatures.

80.Overall, I agree that the plastic surgery expert evidence supports the plaintiff’s case that the obstructions by the articles in the staircase from the 5^th floor to the roof floor and the resulting delay materially contributed to her burn injuries.

C6.  Conclusion on causation

81.In view of the above, I find that the weight of evidence supports the plaintiff’s core contention in respect of causation – namely that the obstructions created by the articles delayed the plaintiff’s ascension of the staircase from the 5^th floor to the roof floor of the Building and also meant that she had to keep to her right by the handrail, thereby increasing the plaintiff’s exposure to very high temperatures and materially contributing to the burn injuries which she sustained.

D.  DID THE ARTICLES OBSTRUCT A “MEANS OF ESCAPE” WITHIN THE MEANING OF SECTION 14 OF THE REGULATION

82.Section 14(1) of the Regulation provides that:

“In relation to any premises, a person commits an offence if the person—

(a) sets out or leaves or causes to be set out or left; or

(b) being the owner, tenant, occupier or person in charge of the premises, permits or suffers to be set out or left,

any article or thing that obstructs or may obstruct the means of escape in respect of the premises.”

83.Section 2(3) of the Regulation defines a “means of escape” as follows: –

“In sections 14 and 15, “means of escape” (逃生途徑), in respect of premises, means such means of escape as may be required for the safety of persons having regard to the use or intended use of the premises”

84.At this juncture, it is also pertinent to note that section 15(1) of the Regulation provides that: –

“A person commits an offence if the person—

(a) secures or causes to be secured the means of escape in respect of any premises; or

(b) being the owner, tenant, occupier or person in charge of any premises, permits or suffers to be secured the means of escape in respect of the premises,

by any lock or other device which in the event of fire or other calamity—

(c) cannot readily and conveniently be opened from within the premises without the use of a key; or

(d) might render escape materially more difficult.”

85.The Regulation thus imposes an obligation not to obstruct or secure/lock (in a manner which cannot readily and conveniently be opened in the event of a fire) any “means of escape”, which is given a broad definition in section 2(3).  Notably, a “means of escape” is not defined or excluded by reference to whether a place is part of the common area or under someone’s exclusive possession.

86.There is no dispute that there is only one staircase in the Building which leads from the street level all the way up to the roof.  As there is no elevator or other staircase in the Building, that staircase is the one and only way to access each floor of the Building.

87.That the staircase must be a “means of escape” from each floor of the Building down to street level has not been a point of contention.

88.However, a question arose as to whether, given that the defendant is the owner of the roof, the staircase can be regarded as a “means of escape” (within the meaning of section 14 of the Regulation) from other units up to the roof of the Building. 

89.It is a material element of the section 14 offence that the obstruction occurred in a “means of escape”.  As discussed above, in view of the defendant’s criminal conviction for the said offence in KTS 6509/2012, the onus is on the defendant to show that this material ingredient has not been established (rather than on the plaintiff to show that this material ingredient has been satisfied).

90.Nonetheless, the plaintiff has correctly made the following points.

91.First, in her cautioned statement made to the FSD dated 12 April 2012, the defendant accepted that she knew that the entire staircase of the Building was a route of fire escape:

“問8: 陳女士，你知唔知道你大廈條樓梯都係走火通道？

答8: 我知道。”

See also paragraph 3(iv) of the Brief Facts based on which the defendant was convicted in KTS 6509/2012.  The Brief Facts further stated “案發地點: 九龍白加士街107 號4 樓至天台樓梯”.

92.Second, it should be noted that the Building (Planning) Regulations, Cap 123F deal with and lay down requirements in respect of “means of escape”.  Regulation 39 provides that: –

“(1) Every building which exceeds 1 storey in height shall be provided with a staircase or staircases to give access to upper floors unless there is separate access to such upper floors.

(2) The main staircase of every building which exceeds 4 storeys in height shall be continued to the roof of the building unless a secondary staircase of fire escape is provided.” (Emphasis supplied)

93.Regulation 41(1) and (2) provides that: -

“(1) Every building shall be provided with such means of escape in case of emergency as may be required by the intended use of the building.

(2) Without prejudice to paragraph (1), every building which exceeds 6 storeys in height or in which the level of the floor of the uppermost storey is more than 17 m above the level of the ground at the point of discharge of the main staircase shall, in addition to the main staircase, be provided with a second staircase as means of escape in case of emergency.” (Emphasis supplied)

94.Accordingly, where a building not exceeding 6 storeys in height only contains one staircase, that staircase is required to be a route of fire/emergency escape that continues to the roof of the building.

95.As held by Andrew Cheung J (as Cheung PJ then was) in Building Authority v Appeal Tribunal (Buildings) [2010] 3 HKC 368 at §§18-20, regulation 41 of the Building (Planning) Regulations applies to both existing buildings and new buildings. 

96.Section 9 of the Code of Practice for the Provision of Means of Escape in Case of Fire (the “Code of Practice”) deals with “Buildings with a Single Staircase”.  Buildings not exceeding 6 storeys in height are permitted to have a single staircase, but where the level of the highest floor is more than 13 m above ground level, the staircase should be continued to the roof (see §9.2(e)(ii)).  Importantly, the roof must have “an area of flat surface for refuge of not less than 0.5 m² per person” and “Such flat roof should be accessible directly from the staircase, clear of any obstruction, and is so positioned that it is readily accessible for rescue purposes” (see §9.2(e)(iii); see also §21.3).  It is conceivable that such rescue purposes may include the use of a ladder from a fire engine enabling rescuees to escape from the building.

97.Mr Maurice Chan, counsel for the defendant, submitted that the roof in the Building in the present case was not a place of refuge because it was privately owned by the defendant.  I have no hesitation in rejecting that argument.  Any agreement between co-owners of the Building as to the use of a certain part of the Building, or giving exclusive possession thereof to any of the owners, cannot in my view overrides the requirement of fire regulations aimed to save lives.

98.The Code of Practice was replaced by the Code of Practice for Fire Safety in Buildings issued by the Buildings Department in September 2011.

99.In the light of the Building (Planning) Regulations (Cap 123F) and the Code of Practice, I agree that the words “means of escape” in the Fire Service (Fire Hazard Abatement) Regulation (Cap 95F) should not be construed in a manner that would give rise to inconsistency and absurdity.  It would be wholly unsatisfactory for the staircase from the 5^th floor to the roof floor of the Building to be regarded as a mandatory means of escape under Cap 123F, but not as a means of escape under Cap 95F (particularly in view that the phrase “means of escape” is given a broad definition in section 2(3) of Cap 95F).  The combined effect of Cap 123F and Cap 95F is that where a building has a single staircase, that staircase must continue all the way up to the roof, and if the exit from the staircase out onto the roof is locked/secured, it must be possible to open that exit conveniently and easily from inside/the staircase in the event of an emergency, regardless of whether the roof is a common area or privately owned.  It follows that the entire staircase must be a “means of escape” under both Cap 123F and Cap 95F.

100.Third, in Attorney General v Asia Electronics Company Limited, CACC 334/1974 (unrep., 28 June 1974) Huggins J (as he then was) had to interpret the words “means of escape” in regulation 31 of the Factories and Industrial Undertakings Regulations (Cap 59A), which at the time provided (though it has since been repealed) that: –

“The proprietor of any registrable workplace shall maintain ...... free from obstruction all the means of escape in case of fire ...... provided in such registrable workplace”

101.The learned Judge observed at page 3 that: –

“I have no doubt whatever that in ordinary language "means of escape" means any route by which a person in a building may escape from that building to a place of safety in case of fire, …”

102.Those observations are apposite to the construction of section 14 of the Regulation.

103.Drawing all of the above strands together, I agree that the whole of the staircase in the Building, from the street level to the roof floor, and vice versa, must be a “means of escape” within the meaning of section 14 of the Regulation. 

E.  QUANTUM: PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

E1.  Treatment received by the plaintiff

104.After the Fire the plaintiff was taken by ambulance to the Queen Elizabeth Hospital.  After initial treatment, the plaintiff was transferred on 6 November 2011 to the Intensive Care Unit (“ICU”) of Prince of Wales Hospital (“PWH”), where she received mechanical ventilation, inotropic support, intravenous fluid support and antibiotics.  On 11 November 2011, she was transferred from the ICU to the Department of Surgery (Burns Unit) of PWH for further treatment. 

105.From 7 November 2011 to 9 January 2012, the plaintiff underwent 9 operations to debride the areas of burn, skin grafting and dressing changes.

106.The plaintiff was hospitalised for 210 days, before she was discharged from PWH on 31 May 2012, with referral for daily wound care, physiotherapy and occupational therapy.

107.After she was discharged from PWH, the plaintiff had to endure numerous further operations.

Left ankle/foot

108.On 20 September 2012, the plaintiff underwent an operation in her left ankle/foot to lengthen her tendon, release the scar contracture and flap coverage at PWH.  However, the operation wound became necrotic.  From 29 September 2012 to 22 November 2012, the plaintiff underwent 4 further operations for debridement and skin grafting.

Right ankle/foot

109.On 19 December 2013, the plaintiff underwent an operation for release of scars contracture, osteotomy, tenotomy, mid-tarsal joint fusion and skin grafting at PWH. 

110.The plaintiff was subsequently admitted again because the cast was impinging on the anterior shin skin.  Serial casting was done to correct her residual right ankle deformity.

111.On 20 August 2014, the plaintiff underwent a right mid-tarsal arthrodesis operation at North District Hospital (“NDH”).

112.On 8 July 2015, percutaneous bone shaving was performed at NDH.  However, the operation was complicated by a stress fracture of the base of the plaintiff’s right 5^th metatarsal bone.

113.On 9 October 2015, the plaintiff attended A&E of PWH because of spontaneous right forefoot pain and was hospitalised in the Orthopaedic Ward for 3 days.

114.An x-ray performed on 26 November 2015 at NDH showed a fracture of the plaintiff’s right 2^nd metatarsal with callus formation.

115.DEXA scan performed on 1 February 2016 at Hong Kong Health Check & Medical Diagnostic Group Limited showed osteopenia.

116.On 22 June 2016, for correction of her right 4^th and 5^th curly toes, the plaintiff underwent toes tenotomy at NDH.

117.From 6 January 2017 to 16 March 2017, the plaintiff attended the Department of Medicine & Geriatrics of Our Lady of Maryknoll Hospital (“OLMH”) twice for the recurrent fractures of right foot with osteopenia.  OLMH opines that her osteopenia could be related to poor nutrition and lack of sun exposure.

118.Further, as a result of the lower limb deformities, at different periods of time, the plaintiff had to wear moulded insole, sandal, POP cast, Aircast walker, resting ankle foot orthosis and modified shoes.

Right Elbow

119.On 4 March 2013, the plaintiff underwent an operation for debridement, flap coverage and skin grafting at the PWH.

120.However, because of necrotic flap, broken down skin graft and wound infection, from 25 March 2013 to 8 May 2013, she underwent four other operations. 

121.On 11 April 2013, a free perforator flap was done to the right elbow.  Another wound debridement and closure was done on 8 May 2013.

Left Elbow

122.On 4 March 2013, the plaintiff underwent an operation for debridement and skin grafting at the PWH.

123.However, the skin graft broke down again. Therefore, on 5 August 2013, she underwent an operation for scar excision and skin grafting at PWH.

124.On 13 September 2013 she underwent an operation for debridement and wound closure.

125.From 14 June 2016 to 21 February 2017, the plaintiff received 3 laser therapy treatments at the PWH to improve her upper limbs scars condition.

E2.  Effect of the plaintiff’s injuries on her daily activities

126.As set out in the Revised Statement of Damages at paragraphs 37 to 41, the plaintiff suffered and is still suffering from, inter alia: –

(1)  General pain and severe discomfort in the feet

(a)   The skin at the plaintiff’s sole of the feet came off, causing immense pain and discomfort. Whenever she moved her feet, the affected areas felt numb, itchy with “pin-and needles” sensation.  Even for the healed areas, blisters would form.  They would very often burst, causing another injured area.  She had to wear a pair of insole for cushioning.  Without them, she could only walk for 10 minutes on bare feet.

(b)  She had to get her parents to apply aqueous cream continuously to relieve the itchiness.  She also required medication to help her sleep.

(c)   The plaintiff had to wear pressure garment and pressure bandage which caused immense discomfort, especially when the skin was itchy and painful.

(2)  Ambulation problems: at present, the plaintiff still cannot sit and stand for extended periods and cannot walk for long distances.  She can take public transport herself. However, she is not very stable when walking up and down stairs.  She will lose balance and fall easily when being bumped by others.  She will easily trip over objects.  She needs to use handrail in going down stairs.  She can run a few steps but in awkward posture. 

(3)  Ugly scars / Cosmetic disabilities

(a)   There are prominent ugly scars over the whole of the plaintiff’s body.  They are itchy, painful, uncomfortable and are very vulnerable to be injured.

(b)  She has been and will have to wear trousers and other clothing to cover her scars for the rest of her life.  She would never be able to wear dresses or any shoes with high heels. She has to wear trainers or special shoes with low heels all the time.  She feels embarrassed by her appearance.

(4)  Unusual gait: Due to the pain as aforesaid, the plaintiff walks with a drop foot gait. 

(5)  Other activities of daily living

(a)   At present, the plaintiff needs to sit on a shower chair when washing herself.  She can carry out light household duties and do simple cooking which does not require extended periods standing. 

(b)  There is recurrent breakdown of the wound over the dorsum of her right hand at the knuckle position of the middle finger, she feels clumsy in daily activities such as writing, using the hair dryer, and when she tries to make a tight fist. 

(c)   She is unable to squat and she has to bend in picking up things from the floor.  She cannot stand on tiptoe or on heels and therefore cannot obtain objects stored at a height.

(6)  Abnormal heat tolerance: At present, the plaintiff’s scars still cause discomfort, itchiness and pain.  Her symptoms become worse in hot environment.  As a result, she stays in place with air-conditioning most of the time.

(7)  Sensation impairment: Due to deceased sensation in upper limbs and lower limbs, she suffered from injuries with laceration frequently.

(8)  Loss of enjoyment in social and leisure activities

(a)   The plaintiff was unable to participate in the social activities as she did before the accident.

(b)  Since June 2016, the plaintiff holds a private car driving license.  However, she cannot use the foot pedals in a normal car.

E3.  Joint plastic surgery report

127.In the Joint Plastic Surgery Report dated 9 January 2016, both experts agreed that:

(1)  The plaintiff suffers from permanent functional and cosmetic disabilities as a result of her burn injuries.

(2)  Her scars are gradually becoming more stable but despite further limited improvement will always remain conspicuous and ugly.

(3)  As the scars mature over the years the itch and discomfort should diminish but residual stiffness and minor discomfort will always be present.

(4)  Her tolerance to heat is diminished and she may experience discomfort in hot environment or when she becomes overheated.

(5)  She has sensory impairment in parts of the scar as well as the soles of her feet.  She must take care to avoid minor trauma which could lead to ulceration.

(6)  Both of her legs are deformed by loss of subcutaneous tissue and disfigurement by extensive ugly scars.

(7)  She will always be restricted in her choice of clothing and footwear. 

(8)  The scars on the back of hand are readily noticeable.

(9)  On casual observation no scars on the head and neck are evident.  But on close inspection scars are present.

(10)  She requires various skin products for her extensive scars.  These may cost up to $2,000 per month.  She is advised to use them over the next 2 or 3 years as the scars gradually mature.

(11)  Plastic surgery or laser treatment cannot meaningfully lessen her cosmetic disabilities.

(12)  Her whole person impairment from her scars is 40%.

128.Further, both experts agreed that: –

(1)  The plaintiff’s social activities are restricted.

(2)  She can no longer play the piano.

(3)  She cannot use foot pedals in a normal car and must use special hand controls.

(4)  She cannot sit and stand for extended periods and cannot walk long distances.

E4.  Joint orthopaedic report

129.In the Joint Orthopaedic Report dated 27 June 2016, both experts agreed that: –

(1)  The total body surface area suffering from burn injury was 55%, with 34% full thickness and 21% deep dermal.  The main area of burn was in the limbs with the left leg showing impaired circulation and impending compartment syndrome.

(2)  The mechanism of injury described by the plaintiff (ie that she was enveloped by thick and hot smoke in the process of escaping from the Fire) is consistent with the 55% burn injury to the body and limbs, as well as the inhalation injury she sustained.

(3)  For the upper limbs, there were contractures producing tightness during finger and wrist movements of the right hand, but overall the plaintiff could still have made a full fist.  The skin over the dorsum of the hand at the MCP joint appeared tight and was reported to be the site of recurrent breakdown.

(4)  As for the lower limbs, there was equinus deformity of both ankles.  There was also deformity in the right foot with painful callosity at the outer border of the right foot.  The toes and ankle movements were limited and weak.  The plaintiff walked with a drop-foot gait.  There was also altered sensation in both soles.  There was also altered sensation in the grafted skin which was devoid of superficial touch sensation.  X-rays showed osteoporosis in the right foot.  There were fusions of mid-tarsal joints and the calcaneal-cuboid joints.

130.The plaintiff’s orthopaedic expert, Dr Lee Po Chin, assessed the total permanent impairment of the whole person (from an orthopaedic perspective) to be 68% (right lower limb – 13%; left lower limb – 11%; tightness of the right hand and impaired right wrist movements 3%; the deep burn of involving more than 50% of the body surface and extensive residual scarring the majority of which cannot be concealed by clothing, as well as the presence of symptoms associated with these scars – 42%).

E5.  Comparable cases

131.In Kan Kit Yuk v Chung Kwok Chuen [1997] 2 HKC 21 the plaintiff (who was aged 21) suffered severe deep burns to 25% of her body area (including her face, neck, breasts, abdomen and arms). She suffered facial disfigurement and very ugly permanent conspicuous keloidal burn scars.  She underwent 12 operations for debridement, skin grafting, carpal tunnel release for both hands, dorsal fasciotomy, release of scar contracture of the left hand and over neck with skin grafting, and would have to undergo a further 5-6 more operations in the future.  The plaintiff also suffered from severe depression.  Cheung J (as he then was) stated at page 35B-D that: –

“It is clear from the photographs that the plaintiff was a pretty and attractive young lady before the accident. Sadly this was changed after the accident. My observation in court of her facial and hand disfigurement accords with Dr Nicolson’s finding. The full horror of her facial and bodily disfigurement is shown in the photographs taken by the doctors. The plaintiff has been facing the tragedy stoically but it is plain that she can no longer lead a normal life. It is unlikely that she will ever marry and experience the joys of marriage and having children. Her injuries are devastating.

She was an extremely active young person who liked to engage in sports, swimming and outdoor activities. She could no longer engage in those activities. Functionally she is not immobile, but considering the extent of injuries, the numerous operations that she had undertaken in the past and will continue to undertake in the future, the [loss] of strength and dexterity of her hands as stated in the occupational therapist report, all these will clearly put this case in the disaster category. The appropriate figure is $1.2m.” (Emphasis supplied)

132.By way of contrast, in Leung Hing Sum v Yau Lee Construction Co Ltd, HCPI 422/2000 (unrep., 12 October 2001), the plaintiff was engulfed in fire and was physically and electrically burnt at work.  The injuries sustained by the plaintiff were threefold: (i) electrical and physical burns resulting in physical and cosmetic disabilities; (ii) electrical thermal trauma to his maxilla teeth; and (iii) development of post-traumatic adjustment disorder.  As a result, the plaintiff was hospitalised for over one month, during which time skin grafting and debridement operations were performed.  The plaintiff suffered 36% second degree burns to his face, lips, neck, anterior trunk and both of his upper limbs.  Four years on from the accident, the plaintiff still had patches of scars on his body over his face, neck, chest and extensively over his left and right upper limbs.  Due to scar contracture, the plaintiff experienced pulling discomfort over his left elbow, his two wrists and the web space of his right hand.  As a result, the strength of his upper limbs and his hand grip were reduced.  At the day of the assessment hearing the plaintiff still experienced pain, irritation and itchiness round the scars in the region of his elbow and wrists.  He was assessed to suffer from permanent impairment of the whole person of 9%. Master Mary Yuen awarded HK$540,000 for PSLA.

133.Using Kan Kit Yuk and Leung Hing Sum as reference points, I agree that the present case falls within the “disaster” category.  The plaintiff sustained serious burn injuries to 55% of her body surface area at the young age of 18 and underwent extensive medical treatment.  She will have to live with burn scars and endure the accompanying medical complications for the rest of her life.  Needless to say that the burn scars on much of her body have a lasting aesthetic impact resulting in cosmetic disability.

134.In the recent case of Ng Tat Kuen v Tam Che Fu [2019] 4 HKC 533, Bharwaney J observed at paragraph 95 that at or about July 2017, the starting point for “disaster” category awards is HK$1,325,000 upwards.

135.In view of the severity of the plaintiff’s injuries and the impact which they will have for the rest of her life as outlined above, and taking into account inflation, I award in the present case HK$1.5 million in general damages for PSLA.

E6.  Conclusion on quantum

136.At trial, the only item of damages disputed by the defendant is PSLA.  Accordingly, the award I make in favour of the plaintiff under the various heads of damages claimed is as follows: –

F.  DISPOSITION AND COSTS

137.I give judgment in favour of the plaintiff against the defendant in the sum of HK$3,142,235.82.

138.There will be an award of interest on damages for PSLA at 2% per annum from the date of the writ to the date of judgment.

139.As for the damages for pre-trial loss of earnings and MPF benefits, special damages, cost of services rendered by the plaintiff’s mother, and loss of earnings and cost of gratuitous care by the plaintiff’s father, interest will be awarded on those damages at half the judgment rate from the date of the Fire until the date of judgment.

140.I make an order that the defendant do pay the plaintiff’s costs of the action, to be taxed if not agreed.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

141.The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

142.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Wong Chi Kwong and Mr Dexter Leung, instructed by Messrs Paul C.K. Tang & Chiu, assigned by the Director of Legal Aid, for the plaintiff

Mr Maurice J Chan and Ms Jenny Lok, instructed by Messrs Chak & Associates, for the defendant