Kan Kit Yuk v. Chung Kwok Chuen

HCPI000536/1995

1995, No.PI536

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST

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Coram: The Hon Mr Justice Cheung in Court

Date of hearing: 21 February 1997

Date of handing down judgment: 12 March 1997

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J U D G M E N T

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Facts

1. On 8th August 1992, the Plaintiff and the Defendant attended a barbecue with other colleagues. The Defendant attempted to light the barbecue by throwing methylated spirits to burning or smouldering pieces of paper and coal. As a result there was an explosion which set alight the clothing of the Plaintiff. She was engulfed in flame and suffered severe burns. Interlocutory judgment was entered and this is an assessment of the Plaintiff's loss and damages.

Injuries

2. The Plaintiff was aged 21 at the time of accident. She was born on 1st July 1971. She suffered third degree severe deep burns to twenty five percent of her body area and in particular :

(i) her face,

(ii) her left ear,

(iii) her neck,

(iv) her breasts,

(v) the front of her upper abdomen, and

(vi) both her arms and hands.

Treatment

3. The Plaintiff had multiple operations from plastic and orthopedic surgeons and remained some three months in hospital after which she was re-admitted for further surgery on numerous occasions. She also followed up for occupational therapy, physiotherapy and splintage treatment. She had 12 operations so far and she will undergo five to six more operations in the future. There will be one operation each year.

4. The multiple operations included debridement, skin grafting operations, carpal tunnel release for both hands, dorsal fasciotomy, release of scar contracture of the left hand and release of scar contracture over the neck with skin grafting.

5. Extensive skin grafts have been taken from the back and front of both thighs and the left shin.

6. She was then given pressure garment therapy which consisted of wearing pressure garments with padding for the face for 15 - 16 hours per day and for the trunk for 24 hours per day. She now wears the body garment during the day and the mask at night.

Dr Nicolson

7. Dr Ian Nicolson examined the Plaintiff in February 1994. This was his findings of the examination.

Head and Neck

8. There are extensive very ugly conspicuous keloidal burn scars involving most of the left side of the face, and the front and sides of the neck. The upper one-third of the left ear and the left ear lobe are shrunken and deformed.

9. The left corner of the mouth is pulled down by thickened heaped up keloidal scar. The left lower eyelid is pulled down when she opens her mouth widely or attempts to extend her neck.

10. There is a very ugly conspicuous keloidal burn contracture over the lower lip, chin, neck and extending onto the chest which prevents full extension of her neck.

11. When she attempts to extend her neck both breasts are displaced upwards by bands on scar contracture.

Chest

12. There are extensive conspicuous ugly partially keloidal burn scars, and skin graft scars over approximately one-third of the front of the chest.

Abdomen

13. There are extensive ugly skin graft and burn scars on the upper abdomen and beneath both breasts. The scars are keloidal in parts.

Right Arm

14. There is conspicuous ugly burn scar on the front of the right shoulder, over two-third of the surface of the forearm and the whole of the back of the hand and parts of the front of the hand. There are also conspicuous skin graft areas over the wrist, back of fingers, thumb and hand and front of part of the fingers. Surgical scars are also evident over the palm of the hand.

15. Burn scar contracture and deformity are evident in the fingers.

Left Arm

16. There is extensive conspicuous ugly burn scar over one-third of the upper arm and most of the forearm. The whole of the hand and wrist area is covered by conspicuous ugly burn and skin graft scars and in addition there are conspicuous surgical scars in the palm. The fingers are mildly deformed by burn scars.

Left Leg

17. There is a conspicuous ugly darkly pigmented keloidal surgical scar in the left groin over an area of 22 x 3 cms.

18. Over the circumference of the middle one-third of the thigh there are conspicuous skin graft donor area scars which in parts are darkly pigmented and thickened.

19. Over the front, inner and outer aspects of the lower leg there are conspicuous pigmented skin graft doner area scars.

Right Leg

20. Over the circumference of most of the thigh there are ugly conspicuous pigmented skin graft doner area scars which are darkly pigmented and thickened in parts.

Plastic surgery

21. Dr Nicolson was of the view that although plastic surgery will lessen the Plaintiff's deformity and disfigurement, the area will always remain conspicuous and ugly and in addition she will have further scars in other parts of the body. She may also require an operation to release scar contracture in her right hand. All her scars will improve a little with time and become softer and more pliable but despite anticipated improvement they will always remain conspicuous and very ugly. Plastic surgery cannot significantly lessen her degree of cosmetic disability.

Depression

22. She suffered severe depression after the accident as a result of which she was referred to and attended the Yaumatei Psychiatric Centre in November and December, 1992 and January, 1993 and was given psychotherapy and anti-depressants. She gave up going there as she found it too distressing.

23. According to Dr Green, a psychiatrist who examined the Plaintiff in February 1996, the Plaintiff did not experience a post-traumatic stress disorder but she did develop a depressive illness. This has now largely cleared but there is an inevitable residual stratum of sadness which is likely to be permanent or at best intermittent.

24. According to the Occupational Therapist, the Plaintiff was observed to be self-conscious about her scars, particularly those that were visible, such as the face and hands. Although her defence mechanism was by adopting an apparent indifference towards her appearance and its effect on others, she became tearful when specific details were asked. She also tried to avoid such discussions by engaging in distracting actions. She showed apprehension of re-integration into society.

Guidelines

25. The guidelines for award for pain, suffering and loss of amenities ("PSLA") are now set out in Chan Pui Ki v. Leung On and Kowloon Motor Bus (Civ. App.263 of 1995). I will set out in the following table the increase in awards since Lee Ting Lam v. Leung Kam Ming [1990] HKLR 657, Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988]2 HKLR 650 and A.G. v. Chun Yat Man [1995]1 HKC 218 :

Previous decisions

26. Mr Ozorio Q.C. has referred to a number of recent decisions dealing with plaintiffs who suffered cosmetic disabilities.

Below the serious injuries category

27. Cheung Sze Kuen v. Wong Chi Cheung HCA No.2486 of 1984, [1986] HKLY 412, (Master Woolley; 11th March 1986) the plaintiff suffered fractures to his shoulder and lacerations to his face and neck. He had noticeable scars on his face but these were not disfiguring. The court awarded $30,000 for PSLA taking his cosmetic disability into account which was the equivalent of about one third of the lowest end of the serious injuries category.

28. Chan Wai Yau, unreport, HCA No A5302 of 1988 (23 March 1990, Master Jennings), the plaintiff's left (non-preferred) hand was trapped in a machine and crushed. He sustained skin lacerations, tendon lacerations and fractures of the phalangeal bones of the middle three fingers. The scarring on the palmar aspect of the three fingers was very obvious together with deformity of the fingers. There was a lack of flexion in the first joint of the middle and ring fingers preventing full extension of the joint, it being always flexed at 20o. The overall effect of the permanent disability is that he could not make a full fist with his left hand. His loss of earning capacity was assessed at 5 per cent, due to loss of dexterity rather than strength. General damages for PSLA were assessed at $60,000 which was about 40% of the lowest end of the serious injuries category.

Lowest end of serious injuries category

29. Cheung San Chun v. Gammon (HK) Ltd. & Anor, HCA No.A1196 of 1985 (Liu J; 10th February 1987) the Plaintiff suffered burns and injuries to his eyes. He was hospitalised for 84 days and underwent several skin graft operations. He wore pressure garments for 3 years and was left with unpleasant scars but fortunately the only disfigurement to his face was a sizeable scar under his chin which was not too obvious. He had stiff joints due to thick scar tissue and his right wrist was affected due to tightness of skin caused by scars. He was also embarrassed by the keloid scars which could not be resolved by further operations or skin grafts. He also had some serious injuries to his eyes. He was awarded $100,000 for PSLA which was equivalent to the lowest end of the serious injuries category.

30. Ho Ping Shui v. Ho Kwai Lin HCA No.A1547 of 1985, (1987) 17 HKLJ 117 (judgment of Master Jones dated 10th October 1986) where the Plaintiff's fingers were crushed in an industrial accident. The Plaintiff was very aware of his cosmetic disability and of the effect of the injuries on his marriage prospects. He could no longer participate in bowling or play the guitar. $100,000 was awarded for PSLA, ie an award equivalent to the bottom of the serious injuries category.

31. Lai Yun Tai v. Chan Kin Hong & Others, unreported, HCA No.A5474 of 1985 (13 June 1986, Master O'Donnell), the plaintiff suffered concussion, post-traumatic amnesia, loss of sense of smell, fractured left collarbone, jaw and pelvis, damaged teeth including badly chipped upper lateral incisor and 3 cm laceration of lower lip. She was in hospital for 18 days. She was left with severe headaches once or twice a month lasting a day; pain from teeth when eating tough food; permanent loss of sense of smell; and scarring of lower lip. The fractures had united well but narrowing of the pelvic inlet could result in difficulties in any future pregnancy. Her total impairment amounted to 9 per cent. General damages for PSLA were assessed at $135,000 (placing the injury at the lowest end of the serious injury category)

32. Tse Yim Kwong v. Mak Yuk Koi, HCA No.A2118 of 1987, [1989] HKLY 477, (Master O'Donnell; 10th February 1987) the plaintiff suffered burns over 12% of his body on both hands and forearms and his face. His disability was assessed as 4% and 2% for stiffness and loss of function and 2% for cosmetic loss which could not be reduced by plastic surgery. Accepting that he clearly had a permanent and serious cosmetic disability, he was awarded $100,000 for PSLA which was equivalent to an award at the lower end of the serious injuries category.

Middle of serious injuries category

33. Chan Yin Pan v. Eastern Time Ltd & Ors HCA No.7922 of 1982, (1986) 16HKLJ 448 (Hunter J.; 15th April 1986). The Plaintiff sustained serious burns affecting 80% of the skin surface. The burns affected the joints in both hands causing a material loss of function and the total functional impairment was assessed at 35%. She had permanent and very obvious scarring with some keloidal scars on the hands, arms, neck, right ear and parts of face as well as on the donor sites on the thighs, causing great embarrassment. She also experienced pain, stiffness and irritation on the scar sites. $135,000 was awarded for PSLA which award fell within the serious injuries category.

34. Chim Kwan Tai v. Li Fung Electronic Factory & Ors, [1987] HKLR 1, (Hunter J; 15th April 1986) where the Plaintiff suffered from burns over 40-80% of his skin surface, 10% of which were 3 degree. The Plaintiff was hospitalised for 2½ months with further grafts and physiotherapy treatment. He had prolonged and painful physiotherapy and wore pressure garments for 3 years. His left grip was substantially reduced and his functional impairment was assessed at 35%. He had permanent and very obvious discoloration and scarring, some keloidal scars to his hands, forearms, neck, right ear, parts of his face and thighs. The scars remained a source of pain, stiffness and irritation. He was unable to do very heavy and fine work. He was awarded $135,000 for PSLA which fell within the serious injuries category.

35. Leung Hei v. Chan Dai Shing HCA No.A1711 of 1985, (1987) 17 HKLJ 116 (Caird DJ dated 20th June 1986) where the Plaintiff was injured in an industrial accident in which his right arm was severed. He suffered considerable cosmetic disability and an award of $125,000 was made to cover the physical, cosmetic and psychological injuries, which award fell within the middle of the serious injuries category.

Top of the serious injuries category

36. Cheung Yuk Chun v. Mitsui Construction Co. Ltd. HCA No.12597 of 1982, (1985) 15 HKLJ 112 (O'Dea J; 8th November 1984) where the Plaintiff suffered extensive physical injuries to her leg as a result of which she was left with substantial scarring on both legs and feet. She could not straighten her left foot and walked with a limp. She was put into the top end of the serious injury category and was awarded $130,000 for PSLA.

37. Ho Yuk Yin v. Lau Ah Lung HCA No.2141 of 1984, (1986) 16 HKLJ 151 (Cruden DJ ; 12th November 1985) where the Plaintiff sustained extensive injuries to her foot as a result of which she suffered permanent cosmetic disability. Her impairment of the whole person was assessed at 21%. She was put into the serious injuries category and was awarded $170,000 for PSLA.

Substantial injuries category

38. Lee Mei See, unreported, HCA No. A2074 of 1987, (1989)19 HKLJ 117 (12 October 1988, Master Perrior). The plaintiff, a former nightclub hostess, was attacked by nightclub patron with a knife. She sustained substantial scarring on both sides of the face and chin which left two linear scars 9 cm in length and 3 mm wide, and 3 cm in length and 2 cm wide on the right side of the face, and a 10 cm long curved linear scar on the left side of the face. An oblique scar was formed on the left side of chin 4 cm long and 2 mm wide. Plastic surgery was carried out but the permanent cosmetic disability would not improve to any significant extent even with further plastic surgery. She suffered psychologically with a post-traumatic stress disorder with permanent incapacity assessed to be at least 60 per cent and probably near 70 per cent. She was awarded $200,000 for PSLA (placing the disablement within the substantial injury category).

39. Mak Chun To v. Ocean Plastic Factory HCA No. A1183 of 1986, (1989)19 HKLJ 119, the Plaintiff's hand was crushed in a moulding machine and he suffered an 8 inch scar on his right flank. He suffered from 50% functional disability and had some cosmetic disability. He was place in the middle of the substantial injury category because of the continual treatment required, the cosmetic disability and the resulting diminution in marriage prospects and was awarded $220,000 for PSLA.

40. Mak Yiu Keung v. Ho Cheung Kat, HCA No. A2413 of 1991, (6 June 1995, Master Woolley) the plaintiff's left hand was injured when an electric saw he was using came into contact with his left wrist and hand cutting it to such an extent that his left hand was almost completely amputated. He underwent 12 reconstructive operations for, inter alia, revascularisation, Silastic rod insertion, re-amputation of the left little finger and fixation of fracture, subsequent removal of the Silastic rods, K-wire fixation, tenolysis, tendon prosthesis, vein and skin grafts and tendon grafting. Despite the lengthy and painful treatment over more than four years, it proved impossible to retain any function in the hand, which was clawed and scarred, he had no movement at all and had extensive sensory loss. In addition to the hospital inpatient treatment, he had extensive physiotherapy and treatment by bonesetters. He could not return to any employment which dexterity. He was awarded $340,000 for PSLA. The Court held that the lengthy treatment, numerous operations and fact that he was left with a useless and unsightly hand, which did not just restrict his ability to work, but also prevented him from performing simple day to day tasks were all sufficiently aggravating factors to justify pitching his disability into the lower end of the substantial injury category.

41. Tsang Kee Chuen v. The Hong Kong & Yaumati Ferry Co. Ltd. HCA No. A303 of 1988 (1989) 19 HKLJ 252 (Master Perrior; 1st December 1988) the Plaintiff sustained severe injuries to the left side of his face and lost his left eye and had scarring around his left eye and some other facial disfigurement. He withdrew from social activities and sports as a result of the injuries. He was awarded $200,000 for PSLA.

Two approaches

42. The cases reveal that the courts in Hong Kong have adopted two approaches in assessing damages for PSLA in cosmetic disabilities. The first approach is to make separate awards for physical and cosmetic injuries. The second is to make one global award and take cosmetic impairment as an aggravated factor.

Separate awards approach

43. Chan Tik Kwan v. Liu Tik For, HCA No. A2623 of 1988, [1989] HKLY 478 (Master Woolley; 22 June 1989) the Plaintiff sustained extensive burns over 40% of his body. He underwent 13 operations for debridement and cleaning of the burns wounds and numerous skin grafting operations. He also had operations to release contractures of scar tissue and to amputate his little left finger and to release web space of the left thumb. The Plaintiff had considerable permanent functional and cosmetic disability. A separate assessment for cosmetic disability was made given the gross disfigurement. His permanent disability was assessed at 65%. He was awarded $200,000 for PSLA (being the upper end of the substantial injury category) and $120,000 for the cosmetic disability.

44. Chui Wing Lai v. Chung Dok Restaurant Ltd. & Anor HCA No.A3177 of 1989, [1995] HKLD C37 (Master O'Donnell; 17th March 1995), the Plaintiff (a female aged 2) suffered from 1o to 2o burns over 40% of her body and a circumferential burn over her left forearm and hand. She was treated with conservative treatment including dressing, analgesia, antibiotic and intravenous fluid replacement. She suffered from electrolyte disturbance resulting in a generalised convulsion during her stay in hospital but she responded well to rehydration. She had a split skin graft from her right thigh to her right lip. She was hospitalised for about 2 1/2 months. She had conspicuous ugly scars around her genitalia and thighs. She had to wear pressure garments to prevent excessive scar formation for 6 years. however she suffered no functional disability. Her cosmetic disability was initially assessed as 30% but it was later reduced to 10-15%. She could cover the scars over the middle section by clothing but she would be aware of her disfigurement every day when she showered and dressed. She would be more concerned about her disfigurement as she grew up where her social relationships and marriage prospects would be restricted. The court put the Plaintiff's injuries in the serious injuries category and awarded $300,000 and a separate award for cosmetic disability for $200,000 (applying Chan Tik Kwan, above). The court refused to put her in the substantial injury category because there was insufficient evidence of future psychological impairment of the Plaintiff and that she did not suffer any functional disability.

45. Kwan Ching Tong & Another unreported., HCA No A5325 of 1988 (12 January 1990, Master Jones), a 9-year-old girl suffered multiple injuries including (a) a comminuted colles fracture of left radius; (b) concussion; (c) a laceration of the forehead and right leg and a jagged laceration of the left high; (d) pain on deviation of the wrist, all considered to be permanent; and (e) keloid formation over the left thigh and leg. She was hospitalised for four days following an operation for the facial and leg injuries. The pain from accident and operation was severe at times but not for very long. Her residual disability was minor and in her non-preferred hand. Her sporting activities were not diminished. General damages for PSLA were assessed at $65,000 allowing an element of compensation for nervous shock but excluding the cosmetic factor. Scarring, in particular to the left leg, was held to be sufficiently serious and identifiable to warrant a separate award reflecting both the disfigurement and the resultant anxiety (Li Chim Ying v Lam Siu Nam & Another, unreported, HCA No 3527 of 1984 and Li Soo Yee v Ho Tak Cheung & Others, unreported, HCA No 11720 of 1982 followed). An award of $20,000 was considered appropriate resulting in a total award for PSLA of $85,000.

46. Kwan Lai Hing v Au Wing Tin & Anor HCA No. 7865 of 1983, (1986) 16 HKLJ 150 (Master Suttill; 4th October 1985) where the plaintiff sustained extensive physical injuries to her leg as a result of which she had a 3" diameter smooth brown scar on her thigh giving a total cosmetic impairment of 2%. The court held that the scars were not sufficiently conspicuous and ugly to followLi Chim Ying v. Lam Siu Nam HCA No. 3527 of 1984 and to assess damages separately under this head for cosmetic impairment. Damages for PSLA were assessed at $120,000.

47. Kwok Shun Tai v. Wong Chiu Yuet HCA No.A4614 of 1987, (1990) 20 HKLJ 400 (Master Cannon; 25th April 1990) the Plaintiff suffered from lacerations and bruises on the right side of the face and fractures of the facial bones and other multiple injuries to different parts of the body. She had scars on the left forehead, above the right eyebrow, on the right upper lip, the neck and right thigh and other serious multiple injuries. Her injuries were put into the top end of the serious injuries category and were assessed at $195,000 for PSLA and a separate award of $75,000 for cosmetic impairment.

48. Lau Kin Lin v. Chan Mee Ching HCA No.4434 of 1984 (1986) 16 HKLJ 308, (Master O'Donnell; 18 October 1985) where the Plaintiff suffered from superficial lacerations to the right ear lobe, the abdomen, the right hip and the left foot. She sustained permanent cosmetic disabilities and the scars were described as noticeable, conspicuous and unsightly but not ugly or disfiguring. Although the Plaintiff claimed to be embarrassed by the scars, the Court was not prepared to consider cosmetic impairment as a separate head of damages unless the scars were both conspicuous and ugly. A global award of $20,000 was awarded for PSLA.

49. Lee So Yee v. Ho Tak Cheung HCA A11720 of 1982, (1987) 17 HKLJ 116 (Master Jones; 27th August 1986), the plaintiff suffered haematoma over his face and other physical injuries to her legs. The court accepted the principle of Kwan Lai Hing that a separate assessment for cosmetic disability may be made in a case of conspicuous ugly scarring. An award of $160,000 was made for the physical disability and a further $100,000 for cosmetic impairment.

Global awards

50. On the other hand, in Chui Po Hing v. Lo Suen HCA No.A1434 of 1988, [1990] HKLY 519 (Master J Chan (as he then was); 23rd February 1990) the Plaintiff was injured in a traffic accident where she suffered from severe deep lacerations on her left calf, ankle and foot and some other multiple injuries. She had a horrendous scarring to the left thigh, leg, ankle and foot and less noticeable scarring to the face, left arm, right hand and leg. The Court refused to make a separate award for cosmetic disability and assessed PSLA at $240,000 placing the injuries towards the upper end of the serious injury category.

51. In Wong Siu Kwan v. AG, HCA No. A2946 of 1987, (1989) 19 HKLJ 387 (Jones J; 25th April 1989) the Plaintiff suffered from lacerations of the nose and right side of her face and had a permanent visual disability of 70% in her right eye. She also suffered a cosmetic disability in the form of scarring around her right eye, depression of the bridge of her nose. She was found to have fallen within the serious injury category and a global award of $150,000 was made.

52. In Chan Yuk Mei v. Law Wai Chuen HCA No. A7457 of 1988, [1991] HKLY 427 (Master J. Chan (as he then was); 27 December 1990), the plaintiff suffered multiple injuries to her face and leg. At the time of the trial, she suffered, inter alia, from extensive scarring to her scalp, face and right thigh and a mild limping. She suffered a total of 16% impairment of her whole person. Taking into account of the protracted and painful medical treatments, the extensive cosmetic impairment, the physical impairment from her hip injury, the crippling psychological impairment and resultant damage to her enjoyment of life, she was awarded $240,000 for PSLA.

53. In Lau Ming Wah v. Yau Ka Fai, HCA No. A6171 of 1986, (1990) 20 HKLJ 124, the plaintiff suffered from multiple laceration wounds over the right side of her face and eyelid. She had conspicuous scars on her right cheek and left jaw region. Apart from several functional disabilities, she suffered severe psychological disturbance. The Court refused to make a separate award for cosmetic disability and awarded the Plaintiff $350,000 for PSLA.

54. In Shum Ting Yuk v. Lam Kam Luen & Another, HCA No. A714 of 1988, (18 October 1995, Master Woolley), the plaintiff suffered a number of injuries of varying severity, including loss of consciousness and a penetrating injury to the skull, laceration and bruising to the face and right hand, extensive damage to the mouth and a prolapsed intervertebral disc. The injuries to the mouth resulted in the loss of six teeth and some of the supporting bone requiring extensive and major reconstructive surgery over a period which lasted nearly six years. Treatment consisted, inter alia, of bone grafting to replace some of the lost bone in her mouth, dental implants, implant-retained dentures, root canal therapy and amalgam restorations. As to the facial scarring, a total of six operations for scar revisions, scar excision and dermabrasion were carried out between April 1987 and September 1988. By 16 July 1991, the scars had all healed well and were practically invisible except for one on her right cheek which remained slightly visible. The head injury was significant but not severe and any damage healed completely within a comparatively short time without any residual disability. The injury to the back was treated by surgical excision of the disc at L4/L5 level. However, despite physiotherapy, pain persisted and the disability was likely to be permanent. Prior to the accident, Plaintiff took a justifiable pride in her appearance. As a result of the accident, she became excessively sensitive about her perceived facial disfigurement. This resulted in severe depression, which in turn was responsible for a number of other complaints, mainly of a psychological nature. The depression was further aggravated by other unfortunate events in her life. The Court awarded $410,000 for PSLA.

The English approach

55. The editors of Kemp & Kemp on The Quantum of Damages C5-001 observed that in practice it is extremely difficult to assess probable awards for facial disfigurement and individual judges vary greatly in this class of case. The bracket within with such awards fall is therefore a wide one and the decided cases do not provide much assistance C5-001. Nolan LJ in Orton v Brindley [Kemp and Kemp C5-028] stated that :

"... not much assistance can be derived from reported decisions in cases of scarring. To an unusual extent, the proper assessment of the damages in such cases must depend upon the view taken by the judge of the impact of the scarring on the particular child."

In Re French (Kemp & Kemp C5-013) an award of ￡ 45,000 was made in 1993. A female aged 17 suffered deep lacerations to face, forehead and neck, substantial lacerations to left leg. There was permanent and disfiguring scarring to leg and face and severe post-operative depression.

The appropriate award

56. Disfigurement is no different from other physical or mental injuries. The Court assesses the pain, suffering and loss of amenities of the injured person and makes a compensation in monetary terms. A global award, taking into account the cosmetic and other injuries can be made. Although the guidelines concentrate on the physical and functional disabilities, the Court of Appeal also stressed that the guidelines are not strait-jackets and are intended to be flexibly applied. This was the view in Lee Ting Lam and repeated in Chan Pui Ki. Although most of the cosmetic disabilities cases fall in the serious injury category and some falls within the substantial disability category, obviously the extent of injuries in each case differed. It is also not appropriate, for example, as suggested by Mr Ozorio, to compare the injuries of the Plaintiff with the injuries of Chan Pui Ki and then assess whether the damages in the present case should be at a higher or lower level. The injuries in these two cases are different.

57. 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.

58. She was an extremely active young person who liked to engage in sports, swimming and out door activities. She could not 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 lose 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 $1.2 million.

Pre-Trial Loss of Earnings

59. The Plaintiff received education up to Form 4. After leaving school, she worked in a number of jobs such as an assembly worker, a receptionist and a shipping clerk. She was working as a shopping clerk at the time of the accident. She was promoted to this position in November 1990. She was unable to resume her job after the accident. She had since done temporary jobs as a substitute worker of short duration. She also did voluntary job at the Employees Retraining Board. In October 1996, she started work at the MacLehose Rehabilitation Centre as a clerk processing applications to use the "Rehab-bus". The job ended last month, but there was a good prospect of her continuing with the employment.

60. The Plaintiff was earning $8,500 per month at the time of the accident. Her basic wage increased to $9,700 per month in 1997 or an increase of 50%. It is reasonable to take her 1997 wage, but for the accident, at $8,500 increasing it by 50% to $12,750. The median wage during the pre-trial period is $10,625.

61. Her loss of past earnings is $10,625 x 55 months at $548,375. Her actual earnings of $44,570 is deducted leaving a balance of $539,805.

Future Loss of Earnings

62. Mr Ozorio agreed that the Plaintiff has a residual earning capacity of around $8,000 per month. Her continuing loss of earnings is $4,750 per month ($12,750 - $8,000). The total sum is $4,750 x 12 months x multiplier of 16 years = $912,000.

Loss of Earning Capacity

63. The Plaintiff's work has been of a temporary nature and will always be subject to spending cuts and budgetary constraints. It is plain that she will suffer from periods of unemployment and handicaps in the labour market since the types of jobs she is capable of performing are limited and it will be difficult for her to maintain long term work due to, inter alia, the need to take frequent sick leave and the limited nature of duties she can perform. The appropriate figure for this award is $200,000. This is based approximately on 1½ month of wages per year.

Future Expenses

64. Future expenses of around $5,000 per year are claimed. The expenses includes hospital fees, travelling expenses to and from hospital, costs of bandages. These are reasonable and necessary expenses and the amount is far from excessive. The award is to $5,000 x 16 = $80,000.

Special Damages/Pre-Trial Expenses

65. Special damages such as hospital fees, travelling expenses, nourishing foods, family's loss of earning, equipment and others are claimed in the sum of $182,178. They are not unreasonable in the circumstances of the case.

Summary of the Plaintiff's Claim

PSLA	$1,200,000.00
Pre-Trial Loss of Earnings	$539,805.00
Loss of Future Earnings	$912,000.00
Loss of Earning Capacity	$200,000.00
Special damages	$182,178.00
	$3,033,983.00

Interest

1. Interest at 2% on PSLA from date of service of writ to judgment.

2. Interest at 5.75% on pre-trial loss of earnings and special damages from date of accident to judgment.

Conclusion

66. There shall be judgment to the Plaintiff on the aforesaid sums together with the costs of assessment of damage.

Representation:

Mr Michael Ozorio Q.C., inst'd by M/s Hoosenally & Neo, for Plaintiff

Defendant in person.