Luk Ka Wai v. Lee Yuk Chun and Another

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Stapp in Chambers.

Date of Judgment: 6th August 1976.

Mr. R. Wei (Counsel) instructed by F. Zimmern & Co. for Plaintiff.

Mr. Munro of Hastings for Defendants.

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages in respect of a girl who had just turned three years of age, at the time of the accident on 9th March, 1975.

2. Interlocutory judgment was entered against the two defendants on 7th April, 1976.

3. Mr. Robert Wei, instructed by F. Zimmern & Co., appeared for the plaintiff, and Mr. Munro of Hastings & Co., appeared for the defendants.

4. On the 9th March, 1975 the plaintiff was having a meal with her family in the Oceania Restaurant & Night Club in the Ocean Terminal, Kowloon. The 1st defendant placed a pot of hot tea on the table and accidentally upset it, causing the hot tea to splash on the plaintiff.

5. She was rushed to Kwong Wah Hospital, where she was found to have a moderate degree of deep burns of the following areas:

(1) Lower part of chin

(2) Front of chest

(3) Medial aspect of right forearm

(4) Medial aspect of left arm

(5) Area between the proximal and distal phalanges of the middle three fingers of left arm

(6) Dorsal aspect of the proximal phalangeal area of left ring and middle fingers

(7) Lateral aspect of the base of left thumb

(8) Front of left thigh

(9) Right side of buttock

(10) Medial part of right thigh

6. She stayed in hospital for 33 days receiving treatment for the scalding. She had to undergo several painful debridement treatments in the operating theatre, apart from other treatment, which included regular saline baths.

7. She was seen by Plaintiff's specialist witness Dr. Edmund Y.C. Lee at his clinic on 24th April, 1975 for the purpose of assessing her scald.

8. Her general condition was good with no apparent mental distress. The following areas showed varying degrees of scarring in the skin due to the scald.

9. In the opinion of Dr. Lee at that stage, from the extent of the scarred areas observed, the scald sustained must have been quite extensive and the degree of scald sustained was probably superficial to partially deep.

10. A further examination was conducted by Dr. Lee on 7/8/75 when his findings were as follows:

11. It was Dr. Lee's opinion from those findings that hypertrophic scarring (keloids) were going to be established and would be likely to give great distress to the child and the parents, as the cosmetic, as well as the physical effects would be of great concern to both. He thought that treatment of the residual scars is not likely to be satisfactory due to the extent and site of the scars.

12. At the hearing of the assessment, Dr. Lee estimated that the area of the body originally scalded had been at least fifteen per cent and that it could definitely have been as high as twenty per cent. He examined the Plaintiff again during the hearing in Chambers, and he said that there had been considerable improvement since he had previously examined her several months prior.

13. He referred to photo exhibit P.1 taken at the time of his last examination and commented that the prominent keloid scars shown therein were still present. He said that exposure to sun would cause the scars to be more unsightly and clothing could cause chaffing. The fact of her being Chinese, with colour pigmentation in the skin, would make the scars more prominent than with say a fair European. He also mentioned that the site of scarring could possibly impede development of the left breast.

14. He added that the keloid scarring might improve with time, but on the other hand it could get worse. It might cause pain, and corrective plastic surgery would be difficult, due to the irregular shape of scarring. Even if she were to eventually need a skin graft over the left breast to relieve contracture, he thought that the result would not be one hundred per cent satisfactory.

15. Defence witness, Dr. Peter Au Kwok Fai had reported in writing as follows:

"It is very fortunate that her face was not involved and that most of the skin burnt in the accident had suffered only superficial damage. However the keloids and linear scars were the results of deep burns. These scars are going to be a permanent feature unless plastic surgery is undertaken at a later day. In my opinion, the sizes and location of these scars are not going to cause her any disability in the mobility of her limbs, but for the same reason, these scars may cause a lot of psychological upset to her as she grows older. She will feel ill at ease to wear bikinis and short pants as these will reveal her scars. These restrictions may severely undermine her confidence in herself, as physical beauty plays a very important part in a young girl's minds."

16. Dr. Otto Y.T. Au's report was also admitted by consent. His opinion was as follows:

"The scars over the left chest and the right thigh are quite unsightly, but with the passage of time, they might become less unsightly due to maturation of the scar tissue, the possibility of scar contracture over the left breast should be considered, although it will be mild. If it exists it might hinder the normal development of the left breast."

17. He went on to assess damages as follows:

18. The mother and next friend of the Plaintiff, Madam WONG May Lin, testified that her daughter had manifested considerable pain and suffering at the time of the accident and for a long time afterwards. She cried continuously for several days and thereafter periodically for a month during winter she complained of pain. She cried loudly after debridement operations, and had to be subdued by nursing staff.

19. For the first few days in hospital Madam Wong was only allowed to view her daughter through a window.

20. After being discharged from hospital the child cried a lot at night for the first couple of weeks and slowly settled down, although she was hot-tempered compared with her previously calm nature.

21. Dr. Leung Ping Chung gave evidence for the defence. He is in charge of the Government Plastic Surgery Unit, which comprises 3 plastic surgeons, including himself. He said that members of the public are at present entitled to plastic surgery in his unit for the nominal hospital fee of $3 per day. The unit was only formed in January, 1976, and at this stage they are not very busy. He added that the unit is up to good British standards. He expressed the opinion that one cannot guarantee success with keloid operations, because of the problem involved. Skill of the surgeon is an important factor. He further said that "the younger the age, the worse the result" is the general rule in plastic surgery, particularly with children under ten years. If surgery is for cosmetic reasons one should delay, but if for functional reasons, one should not delay.

22. I shall refer to three of the numerous relevant cases referred to in argument, which I found particularly helpful in my assessment:

(1)	Tang Lo Lai-chun v. Yim Ho Wai-lin and anor. O.J.A. No. 2017 of 1972. H.K.L.J. (1975) pp 384-385
	The plaintiff, a married woman in her middle thirties, was attacked and savaged by four boxer dogs while she was on the roof area, common to all tenants, of the building in which she lived. The plaintiff suffered a large number of injuries, most of them leaving no marks, but there were large areas of unsightly scar tissue and wastage of flesh on her left arm. This could be partially remedied by plastic surgery which was estimated to cost about $3,000 and $1,050 in lost wages. Damages for loss of future earnings were assessed at $6,000. In assessing general damages of $22,050 Cons J. took into account what he described as the horrifying way in which "the injuries were inflicted" and the effect that this might have had on the mind of the plaintiff.
(2)	O.J. Action No. 968 of 1975 L.M. Sabidussi by her next friend v. The Mother Superior of the Soeurs de Saint Paul de Chartres (Hong Kong) & anor.
	The plaintiff, who was a girl of 5 at the time, received an electrical burn on her right leg while undergoing an operation in hospital. The result was a conspicuous, unsightly and discoloured scar resulting from the burn measuring 48 mm x 32 mm on the outside of her right calf. The skin covering the scar was very thin and would ulcerate easily when traumatised. The skin would break more readily than normal skin. The doctor advised the plaintiff's parents to leave the scar until she was a teenager before any skin graft operation as an operation at present might possibly result in hypertrophy and keloid.
	Mr. Registrar Barnett assessed general damages at $12,000, to include the cost of cosmetic surgery if eventually decided upon, or alternatively to compensate for continuing problems associated with the remaining scar.
(3)	Lee v. Liverpool Corporation 1971 C.A. No. 301 (referred to in Kemp & Kemp 4th ed. Vol.2 at p.4301)
	This case involved very bad burns to a girl aged about 5 years when her clothing came in contact with a candle. She suffered full skin burning over one-fifth of the area of her body, which placed her life in grave danger.
	Although the overall burns and scars were clearly more extreme than those in the present case, to a lesser degree the words of the learned Commissioner in the original hearing would appear to have some bearing:
"	The facts I have indicated are sufficient to show that there is a danger, the degree of which it is quite impossible to assess, of some impairment of this young girl's future sexual life. It may be that she will be fortunate and that there will be no disappointment when the time comes for her to think of marriage. On the other hand, it may be that the effect of this scarring and marring of her body will inhibit her and may indeed inhibit a future husband, but all these are matters of speculation.
	In his judgment, Lord Salmon said:
	"Now the learned Commissioner awarded her the sum of £2,750 by way of damages. To my mind, by any standards that figure is startlingly inadequate. It is of course very difficult to assess damages for injuries of this kind and their probable consequences in pounds, shillings and pence, but I think that the least sum that could be considered as reasonable compensation for this shocking injury is £6,500."

General Damages

23. Whilst it might be argued that the plaintiff in the first of the cases abovementioned was older and would be more aware of the horrifying way in which her injuries were inflicted, nevertheless, the child plaintiff in the present case sufferd shock, extreme pain over a lengthy period, unpleasant medical treatment and separation from her family for some time.

24. However, worse is to come, as she will have to bear the residual claw-like scarring on parts of her body which are particularly important to a female. Those scars, which I have examined in chambers, are clearly going to be the source of considerable inhibition, embarrassment and sorrow to her as she matures into a woman and thereafter. Apart from that of course, she will be restricted to non-revealing clothing in a mainly tropical climate, and will experience some physical discomfort from chaffing.

25. Considering all the above matters under the usual headings of pain, suffering, loss of amenities and pleasures of life, I think to be fair, I should award the plaintiff $25,000.

26. In addition, I consider that such figure should be added the sum of $10,000, which was a conservative estimate by Dr. Otto Y.T. Au, of what a skin graft over the left breast to relieve contracture, would cost on today's figures. The need for such surgery may arise in the years ahead, and I am of the view that the plaintiff should be entitled that sum to cover the cost of private treatment. Whilst the Princess Margaret Plastic Surgery Unit is no doubt extremely efficient and not unduly busy at present, it is difficult to predict what pressures they may face and what priorities and costs to patients may be involved, in say ten to fifteen years when the plaintiff may need surgery. In addition, involved in such an operation would be psychological problems for the patient, and a demand for a high degree of skill on the part of the surgeon. Should the need arise, the plaintiff may well wish to choose a surgeon in private practice in whom she may have special confidence, and I think she should be entitled to do so.

27. I therefore award a total of $35,000 as general damages to the plaintiff.

Special Damages

(i)	Doctor's fee - This item was withdrawn, as it should be dealt with as a medico-legal expense.
(ii)	Nourishment
	I accept that the sum of $780.80 was spent on special nourishment in the form of orange juice, fresh milk and soup etc. The mother of the plaintiff testified that this was done on the advice of nursing staff at the hospital. In addition, Dr. Peter Au Kwok-fai testified that such nourishment would help, as such a young girl would not be able to tolerate sold foods very well. I therefore allow this claim in full.
(iii)	Travelling expenses
	These were agreed at $433.80.
(iv)	Sundries
	I disallow this claim as it has not been proved to my satisfaction.

28. Special damages therefore total $1,214.60.

29. I allow interest on the general damages of $35,000 at 8% from the date of writ (5th November, 1975).

30. I allow interest on the special damages of $1,214.60 at 4% from the date of accident (9th March, 1975). The total damages are to be paid into Court within 14 days. The special damages of $1,214.60, together with interest thereon, may be paid out to the plaintiff's next friend, her mother.

31. The general damages of $35,000 will be invested by the Registrar at his discretion, with liberty to apply.

32. The plaintiff is to have her costs.

33. I grant a certificate for counsel for the plaintiff.

Dated the 6th day of August, 1976.

Representation:

Mr. R. Wei (Counsel) instructed by F. Zimmern & Co. for plaintiff.

Mr. Munro of Hastings for Defendants.