Leung Pui Yiu v. Wong Yin Kuen and Others

HCPI000453/2000

HCPI 453/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 453/2000

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Coram: Hon. Seagroatt , J, in Court

Date of Hearing: 18 May 2001

Date of Judgment: 18 May 2001

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JUDGMENT

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1. On 10 April 1999, a little over two years ago, this 10 year old girl, then 8 years of age, was enjoying an evening meal with her family in the 3rd defendant's restaurant. They were seated at a table near the kitchen. Shortly after 10 o'clock that night, two waitresses in the restaurant collided and one of them, the 1st defendant, was unable to prevent hot soup from spilling onto the face, neck and shoulders of this infant plaintiff, thereby scalding her.

2. That there was negligence on the part of the 3rd defendant and/or its servants or agents is abundantly clear. The problem was most likely the positioning of the dining table so close to the kitchen, thereby restricting passage for the waiting staff.

3. The plaintiff in this action has obtained judgment against the 1st and 3rd defendants so far. She was taken to Queen Mary Hospital for treatment for the consequential burns. The total surface of her body affected by these was 3 per cent. There were first to second degree burns to her right forehead, right cheek and a small area over her right shoulder, arm and back. She was discharged from hospital 20 days later with a plan to monitor any scarring after one month.

4. It must be said that she had made a very good recovery from her experience. In December 1999 she was seen by Dr. Singer, the consultant psychiatrist, who took a very pessimistic view of her prognosis. But Dr Peter Lee's recent report is a very practical assessment of her present position. He describes a mild degree of emotional and psychological difficulties under ordinary, everyday conditions of stress. He recommends five sessions of psychological therapy to assist her to put the incident, frightening and painful as it was, into the past and to come to terms with her injuries.

5. She is a pretty girl with a lovely natural smile and whatever scarring remains, which is essentially of a pigmented nature, will lessen in time. She was not herself overly conscious of it. Dr Nicolson, the specialist in cosmetic surgery who saw her again in March this year, considers that the facial scars are under control and will probably continue to improve over the years. The pigmentation of her shoulder will remain to some extent but the photographs taken by him show that it is not of real cosmetic significance.

6. I do not doubt that a practical and realistic approach by her parents will help in her overall improvement. It is notable that she made no cosmetic complaints to Dr Nicolson . No school reports have been put before me, a surprising feature perhaps, given the age of this girl and her psychological upset, but Dr Lee's comments indicate that there has been no real effect on her academic progress.

7. Taking all features into account, the proper figure for general damages for pain and suffering and loss of amenity, will be $225,000.

8. Future treatment: Dr Lee's recommendation is entirely reasonable and the sum of $7,500 is allowed for these five sessions. His assessment and this young girl's progress have completely superseded Dr Singer's assessment.

9. Special damages: These are all reasonable and I allow them at the figure revised downwards by Mr Vaughan of $7,551.

10. Loss of earning capacity: There is no evidence or basis for a claim for loss of earning capacity, and Mr Vaughan realistically concedes the difficulties in advancing this. I see no reason for not assuming that whatever residual marks there may be in eight to ten years' time will make not the slightest difference to her employment.

11. There will therefore be judgment for the plaintiff against all defendants for $240,051, with costs and interest. The judgment against the 1st and 2nd defendants is against them as servants or agents of the 3rd defendant. The plaintiff may yet be able to enforce that judgment against the 3rd defendant in some form or other. The judgment is not to be enforced against the 1st and/or the 2nd defendants without the leave of this court. It would be unjust in my view for the first two defendants to be called upon to meet the award. Any damages recovered will have to be paid into court, though I make it clear that the sums for treatment and past expenses should be reimbursed as soon as any damages are recovered.

Representation:

Mr Joseph Vaughan, instructed by Messrs Fong & Ng for the Plaintiff

Wong Yin Kuen, the 1st Defendant, in person

Kwan Yu Yuk, the 2nd Defendant, in person

The Thai Viet Restaurant Limited, the 3rd Defendant, in person (absent)