Wong Ka Lei v. Yung Chik Wing

HCA001248/1969

ORIGINAL JURISDICTION

ACTION NO. 1248 OF 1969

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Coram: Hon. Blair-Kerr, J. in Court

Date of Judgment: 2rd March, 1971.

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JUDGMENT

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1. From 17th October 1968 to 9th May 1969, the plaintiff (who is now 24 years of age) was employed as a dance hostess by the Fuji Ballroom. On the evening of 9th May the defendant (a man aged 45 years) had taken the girl from the ballroom to dinner somewhere in Repulse Bay intending to spend the entire evening with her. About 11.00 p.m. she was a passenger in a car driven by the defendant in South Bay Road. Owing to the negligent manner in which the defendant drove the vehicle, it crashed against a hill-side. The windscreen was shattered as a result of the impact. The plaintiff was thrown forward. Her face, which came in contact with the broken glass of the windscreen, was lacerated in a number of places, and she twisted her ankle; but no bones were broken.

2. In this action the plaintiff is claiming damages against the defendant for the injuries sustained by her in the traffic accident. The defendant admits negligence; but he pleads:

"...... by an oral agreement made by the plaintiff and the defendant it was agreed that the plaintiff would accept the sum of $1,800 in satisfaction and discharge of any rights or claims which the plaintiff had or might have had against the defendant arising out of the said incident. In pursuance of the said agreement the defendant duly paid the plaintiff the sums of $100, $200 and $1,500 which the plaintiff received and accepted in satisfaction and discharge of any rights or claims which the plaintiff had or might have had against the defendant arising out of the said incident."

3. I accept the defendant's evidence that he visited the plaintiff in Queen Mary Hospital on 10th May and paid her $100, which was, apparently, what he owed her for the pleasure of her company after they left the Fuji Ballroom the previous evening. The following day, he again went to Queen Mary Hospital and paid her $200. He said in evidence that he gave her this money "out of sympathy".

4. On 13th May she was discharged from hospital; and the defendant visited her at her home in Tokwawan the same day. The parties discussed the question of plastic surgery. Although there was a conflict of evidence on the point, the probability is that it was the defendant who first suggested to the girl that a surgical operation by a plastic surgeon would be beneficial. At any rate, she did in fact consult a Dr. Otto Au. She said that the consultation took place on 16th May. He gave the date of the consultation as the 14th May, i.e. 5 days after the accident. One thing is certain: the girl's facial wound had not healed when she consulted Dr. Otto Au, and no plastic surgery could possibly have been undertaken at that stage. Dr. Au told the plaintiff to come back after her wounds had fully healed. How, at that very early stage, he was able to express a view as to the extent to which surgery would be beneficial, I just do not know; but, surprising though it may seem, he chose to give the plaintiff an estimate of the cost of such surgery. In evidence he said that he told her that the total cost of the operation would be approximately $8,000. According to the plaintiff, he told her that the operation would be "between $6,000 and $8,000". When asked in evidence how the figure of $8,000 had been made up, Dr. Au said that his own fee would have been $5,000 and that the remaining $3,000 would have been the cost of hospitalisation, anaesthetist's fee etc.

5. The defendant spoke to the plaintiff shortly after this interview; and, according to his evidence (which I accept), she mentioned only the figure $5,000, which was the figure given by Dr. Au in evidence as what his own fee would have been if he had performed the operation.

6. When the gist of a conversation is passed on from one person to another, mistakes are easily made. Presumably Dr. Au was asked to give evidence in this case a few months ago. For the purpose of his giving evidence in Court, he may have estimated what would have been the total cost of surgery in 1969. He would have had to cast his mind back 21 months to a time when no litigation was contemplated and to an interview with a patient whom he only saw on one occasion, on whom he did not in fact perform any surgery, and who was merely one of many patients whom he had interviewed during the year 1969. It is surprising that he even remembered examining the plaintiff at all. Yet he purported to identify her in court 21 months later without the slightest difficulty. It was not as if he had said: "I have refreshed my memory from a contemporaneous record made by me and I find that I advised a patient who gave her name as Wong Ka Lei that ................" He did not suggest that he had made any contemporaneous record of the details of his conversation with her; and it is not known whether he gave the plaintiff details of how the $8,000 was made up. The figure which the defendant alleges the plaintiff quoted to him happens to be the figure which Dr. Au gave in evidence as the fee which he would have charged; and I am inclined to think that the figure discussed by the plaintiff and defendant as being the cost of plastic surgery was $5,000, not $8,000. Dr. Au, if he spoke to the girl at all, had no particular reason to remember his interview with her. On the other hand, the parties to this action have every reason to remember their discussion about the operation and the probable cost thereof; and, as I have said, I prefer the defendant's version.

7. The defendant was very conscious of the fact that he had wronged the girl, and he was keen to make amends, no doubt as cheaply as possible; and I think that he considered that $5,000 was an unduly high fee for what appeared to be a comparatively simple operation. According to him, she asked him to pay half the cost. I find that difficult to accept. Why should she be content with half the cost of the operation? She was not to blame for the accident. At any rate, there was no agreement reached at this meeting as to how the cost of surgery was to be defrayed.

8. A few days later, the defendant phoned the plaintiff and asked her to meet him in a cafe. She arrived with her mother. The defendant was accompanied by a woman whom he described in evidence as his common law wife. It is common ground that the discussion centred around the question of the plaintiff undergoing plastic surgery and the cost thereof. There is no evidence that any other consequence of the accident was discussed. My note of the defendant's evidence reads:-

In cross-examination, however, the defendant said this:-

So Oi Kam, the defendant's girl friend, said in evidence:-

9. I accepted the evidence of the defendant and his witness as to what actually happened at the interview at the cafe; and, no doubt, it was his hope that the payment of $1,500 (coupled with the extra $200 which he had given to the plaintiff in Queen Mary Hospital) would be accepted by her as his contribution to the cost of plastic surgery, which was really the only matter which the parties had discussed. It was So Oi Kam who introduced the expression "final settlement" into the conversation after the plaintiff had accepted the $1,500. Admittedly, the plaintiff said nothing, raised no objection, and simply nodded her head to So Oi Kam's suggestion; but, in all the circumstances, I do not feel able to infer from all this that the plaintiff agreed to accept the $1,700 "in satisfaction and discharge of any rights or claims which (she) had or might have had against the defendant arising out of the said accident". I do not think she is debarred from bringing this action. The only question, therefore, which remains for decision is what damages the plaintiff is entitled to.

10. In a personal injury case, if a plaintiff is in full employment in some trade, profession or business, loss of earnings is usually the main question for consideration. According to the plaintiff in this case, the only reason she became a dance hostess was because she felt she should contribute to the maintenance of her mother, younger brothers and an elder brother who, she said, was in China; but she did not call any members of her family to support this statement. She said she had worked at three of the most popular ballrooms in town (Tonnochy, Oriental and Fuji); and there is no doubt that for the seven months prior to the accident she had worked as dance hostess at Fuji. She called the manager of this establishment to say that her earnings for that period was $3,300; and I accept that evidence. Her average earnings from Fuji were therefore approximately $500 per month.

11. It frequently happens, of course, that dance hostesses earn as much, and sometimes more, than their earnings in the ballroom as a result of their being asked by patrons to leave the ballroom and spend the evening elsewhere. The ballroom does not lose by this. The patron must pay the establishment for the number of hours the girl is absent; but whatever she makes over and above that (for whatever services she agrees to give to the patron) is her own concern. What she makes depends on many things; but perhaps her physical attractiveness to the male is the most important facter. I do not think for a moment that male patrons ask these girls out in the hope of obtaining a few hours of stimulating intellectual conversation.

12. "Extramural" earnings of this nature must, of necessity, vary considerably. The plaintiff estimated that she earned about $1,000 per month in what she described as "tips", making her total monthly earnings from all sources about $1,500. But there is no evidence that she kept any record of what she earned; and it is highly unlikely that she did keep such a record. She admitted that she had never submitted a return to the Inland Revenue Department for tax purposes; and the court only had her word for it that she earned, on the average, about $1,000 by way of "tips".

13. Apparently, the defendant's solicitors had considerable misgivings as to the correctness of this figure because they instructed a firm of private investigators (Fidelity Inspection Service) to interview the plaintiff; and a member of this firm (Mr. Alfred Ng) did so on 24th January, 1971, i.e. a few weeks ago. According to him, she admitted to him that her total earnings in 1969 before the accident were not $1,500 but "about $1,000 per ...(illegible).

14. Ng was a disinterested witness; and I do not doubt that she did mention the figure $1,000 to him. I also think that the possibility of a misunderstanding on her part is slight because Ng obviously was familiar with her claim and it was in answer to Ng's question as to whether she had in fact been earning $1,500 (the figure which she gave her solicitors as her total monthly earnings) that she quoted the lower figure. Had she forgotten what she had said to her own solicitors 21 months ago? The tendency of a person in the position of the plaintiff to exaggerate should not be overlooked by a court; and here I have the evidence of a disinterested witness who, it may be, caught her off guard. I am inclined to think that $1,000 per month was nearer the mark than $1,500 as being the plaintiff's total earnings from all sources for the 7 months prior to 9th May 1969.

15. The plaintiff said that she has not worked as a dance hostess since the accident. The manager of Fuji said that about 1 month after the accident she came to the ballroom and asked to be re-employed, but that he told her to come back to work "after recovery". The manager's attitude is quite understandable. One does not need medical evidence (although there was some evidence to this effect) that scar tissue remains red for some time after healing. However, the manager said that the plaintiff did not come back. When asked whether he would now employ her in her present state, he gave a rather peculiar answer. He said:-

"For her own sake I would not and even if I were to employ her I do not think she would have a good career."

16. I would have thought that the manager of a ballroom would have been primarily concerned with the commercial success of the ballroom, and nothing else. When asked whether he would employ her after plastic surgery to improve her scars, he said that he would be prepared to do so.

17. The plaintiff said that she had tried to get employment in severed ballrooms since May 1969 without success. I do not accept that evidence. On 24th January, NG asked her whether she had returned to Fuji to work after the accident. In answer to that question, she said that on many occasions the manager of this ballroom had asked her to return to work, and that she had refused to do so. Ng said his impression (for what it was worth) was that her reason for refusing to return to work was because of the scars on her face.

18. The principal claim under the heading of special damages is given as:-

"Loss of income at the rate of $1,500 per month from 9th May, 1969 to 8th February 1970, - $13,500."

The statement of claim is dated 28th February, 1970. As I have already said, I think that $1,000 per month was nearer the mark. On this basis, the clear would read $9,000. But Mr. Mills-Owens, for the defendant, has questioned the whole basis of this claim for special damages.

19. He pointed out that for one thing the plaintiff has continued to pay the rent of a room in Continental Mansion, King's Road since May 1969 although she said that since the accident she has lived with her mother in Kowloon. Naturally, she was cross-examined about this. Part of my note reads:-

I suppose one is entitled to put one's own construction on these answers. It would appear that to this young lady "men" and "business purposes" are synonymous; and all I can say is that if that room in Continental Mansion is not a present source of income to her, then, as counsel for the defendant said, it has been a gross waste of money for the plaintiff to have paid the rent of the room for the last 21 months.

20. I have considerable doubt as to whether she has ever contributed to the support of other members of her family. But whatever the truth of the matter is, and whether or not the room in Continental Mansion is a source of income to her or otherwise, she admitted that she had been able to save a few thousand dollars, and that out of her earnings she had also managed to purchase quantities of jewellery which, if they were sold, would fetch about $4,000.

21. A Medical Board was convened at Queen Mary Hospital on 15th June 1970 to examine and report on the plaintiff's injuries. The Board found that there was a residual scar about 3" long on the right side of her face and that the other lacerations had healed well with very slight scarring.

22. Dr. Wedderburn who examined her on 12th May 1970 reported that in his view the only scar which would in any way affect the plaintiff's ability to earn her livelihood as a dance hostess was the scar on her right cheek and he added:

"With the normal lighting of a dance hall I do not think that (the scar) would be visible."

He said that the scar on the right cheek was amenable to plastic improvement.  He gave similar evidence; and his views were corroborated by both the plastic surgeons who gave evidence. Dr. Nicholson impressed me most. He said that plastic surgery could remove irregularities in the scar and depress it so that it was level with the rest of the cheek; that there would always be scar tissue; but that it would be less conspicuous. He said that any possible colour defects could easily be covered with cosmetics.

23. The plaintiff admitted that she was not wearing any make-up at ...(illegible) when she gave evidence in these proceedings. I examined her face carefully at close quarters - by that I mean at a distance of 2 feet or so. I was, of course, doing my best to look for scars; and, with the exception of a fairly conspicuous scar on the right cheek and two small scars on the left cheek, I found considerable difficulty in seeing any scars at all. If a person were not looking for scars, I think that he would be bound to notice the scar on the right cheek whether or not the plaintiff had make-up on. What the position would be as regards the two small scars on the left cheek if the girl did have make-up on, I do not know. But, having examined her face closely, and having heard Dr. Nicholson, I feel fairly certain that, after plastic surgery and with normal make-up, any residual scar tissue on the girl's face would hardly be noticeable, at any rate to persons who were not looking for blemishes - especially in a dimly-lighted dance hall.

24. Dr. Nicholson, who is a plastic surgeon, examined the plaintiff before he gave evidence. He said that his fee for operating on the scar on the right cheek and a small irregularity on the left cheek would be $2,000, that the patient would only require to remain in hospital for 2 days, and that the total cost of the operation would be $3,000, i.e. including his fee.

25. He was asked about Dr. Au's estimate of $8,000; but he would not comment on that, except to say that surgeons do not have any scale of fees and that charges are completely arbitrary.

26. The plaintiff said in evidence that she would not work at any ballroom other than Fuji, Oriental and Tonnachy because the wealthy type of tourists who patronised these three ballrooms did not frequent any of theother ballrooms in town and consequently there was less money to be made at these other ballrooms.

27. I do not think that the plaintiff cares very much one way or the other whether she is employed as a dance hostess. It seems to me an extraordinary thing, if her scars ever did stand in the way of her re-employment, that she did not make further inquiries as to the cost of plastic surgery. I say nothing at all about Dr. Au and his $8,000 except this: that it seems to me to be a great deal of money to have to pay for what appears to be a very simple operation. No evidence was called to suggest that this was the normal total cost for such an operation; and, in the light of Dr. Nicholson's evidance, it seems to me that I am entitled to infer that, with very little effort on her part, the plaintiff could have managed to get the operation done for very much less. Furthermore, if she had considered it vital to her livelihood, there is no doubt in my mind that she could have raised the necessary few thousand dollars.

28. This matter is of some importance because a plaintiff is bound to mitigate loss sustained by all reasonable means; and Mr. Mills-Owens drew my attention to Shilton v. Wilby a decision of Phillimore J., a short report of which appears at pp.328/9 of Vol. I of Kemp and Kemp on Quantum of Damages (3rd Ed.). It reads:-

"Female aged 20, unmarried, market gardener. Cut on edge of right upper lip; bruising of left knee and abrasions to both knees. Swelling on lip. She unreasonably refused to undergo operation advised by surgeon. Phillimore J. said that the disfigurement of lip was minor and that the operation on it would probably have cured it. He awarded damages on the basis of her condition as it would have been if she had had the operation."

29. I do not think that the plaintiff is entitled to come into this court and say in effect: "I am under no obligation to undergo surgery; treat my case on the footing that I can no longer earn my living; estimate my loss of earnings on the basis of the number of years that I could have worked as a dance hostess; take into consideration the fact that I am compelled to go through life with two obvious scars on my face which will impair my chances of marriage and my enjoyment of the amenities of life generally." Having regard to the fact that the operation involves the skin only (and there was some suggestion in evidence that such an operation could even be done without a general anaesthetic) and bearing in mind the great advances which have been made in the field of plastic surgery in recent years, it seems to me that it was eminently reasonable, not only from the point of view of her earning her living but improving her prospects of marriage, that the plaintiff should have taken the earliest opportunity of having the two scar on her face improved by plastic surgery. There is nothing in the medical evidence to suggest that this operation might not have been successful; and the weight of the evidence appears to indicate that after such an operation any diminution of her ability to earn her living would have been negligible.

30. There was no evidence as to the period which has to elapse before plastic surgery may be undertaken other than that a wound has to be fully healed. It seems to me, therefore, that the plaintiff could have had this operation performed at say, the beginning of July 1969. Allowing, say, another 3 months for the post-operative redness of the scar tissue to disappear, or at least diminish sufficiently so that any residual colouring could have been covered by make-up, it seems to me that the plaintiff could have resumed her employment as a dance hostess in, say, October 1969 - 5 months after the accident. Looking at the matter in this way, her esti-mated loss of earnings as a dance hostess for the 5 months between mid-and mid-October would have been $5,000.

31. The plaintiff said that since August 1969 she had earned about $300 per month on piece work helping her mother at home to sew buttons on garments. One wonders why she was unable to start such work sooner. The lacerations on her face must have healed long before then. And I do not think that if she had undergone surgery in, say, July 1969 that this should have interferred to any great extent with her performing such work. Dr. Nicholson said the operation would only have involved 2 days in hospital. At any rate, I do not think it is unreasonable to suggest that she could easily have earned $300 per month for at least 3 of the 5 months between May and October 1969, in which case she could have earned $900. This, together with the $1,700 which the plaintiff admits she received from the defendant, have to be deducted from the $5,000; and her net loss would therefore have been $2,400.

32. The plaintiff would have been entitled to claim for the cost of surgery. Unlike Dr. Au, who saw the plaintiff in the condition she was in 5 days after the accident, Dr. Nicholson saw the plaintiff after the wounds had fully healed; and I see no reason why this court should not accept his estimate of $3,000. This would bring the claim for special damages up to $5,400.

33. The plaintiff also claims $1,000 for what she describes as "Special diet and nourishment". According to her, this consisted of 4 or 5 meals of a substance called Lo Pei Huet mixed with herbs. Each meal, she said, cost $120 i.e. the meals cost $480 or $600 depending on whether she in fact consumed 4 or 5 of these. The remainder of the $1,000 (i.e. $520 or $400 as the case may be) was, according to the plaintiff, spent on purchasing large quantities of a certain type of fish which, she said, was supposed to have special healing properties. The plaintiff admits that this special diet was not recommended by any doctor or herbalist. She said she consumed this food because her mother advised her to do so.

34. I am, of course, perfectly well aware that a large number of Chinese people genuinely believe in the efficacy of herbs of various kinds and in the special healing properties of certain types of food. But in the absence of any evidence from a doctor or herbalist not so much for the purpose of establishing that such food is efficacious, but as to the necessity for such expensive food as the plaintiff allegedly purchased and consumed, and in the absence of any corroborative evidence (such as receipts) that such food was in fact purchased for the sums claimed, I do not think that I can reasonably order the defendant to pay for these expensive meals. This item is accordingly disallowed.

35. The plaintiff's evening dress was damaged in the accident; and there is a small claim for travelling expenses. I allow the $150 claimed in respect of these two items. Special damages therefore total $5,550.

36. Turning now to the question of general damages. As I have said, I an dealing with this case on the footing that, in her own interests and with a view to mitigating the damages, the plaintiff ought, reasonably, to have had this simple surgical operation performed. If she had done that, not only would her facial appearance have been improved to such an extent that there would have been very little, if any, diminution in her earning power, but such prospects of marriage as she may have, and her capacity to enjoy the amenities of life generally would not have been affected to any considerable extent. She would, of course, have had to go through life with one scar which would still have been obvious (unless covered with make-up) and one or two other small scars. I really must disregard the other tiny scars which are not apparent unless one scrutinizes the plaintiff's face literally with a magnifying glass.

37. As regards pain and suffering, there is no doubt that she must have suffered considerable shock as a result of the accident. Her face was swollen for some time. The lacerations were no doubt painful for some little time and one or two of them had to be stitched, and so on. If she had gone through an operation for plastic surgery, she would have had to suffer some further discomfort and inconvenience.

38. I do not think that there is any point in trying to fix particular sums in respect of the pain and suffering which the plaintiff had to endure as a result of the accident, diminution in her earning power (which, according to the doctors would, after surgery, have been almost negligible) the extent to which the presence of the scars may conceivably cause diminution in her capacity to enjoy the amenities of life, reducing, perhaps, such chances of marriage as she may have. Both Counsel invited me to take a broad view of this matter, taking everything into consideration including the girl's age and the manner in which she has chosen to earn her living so far. In regard to that, I find it difficult to forget the fact that this young lady, for no reason which she could satisfactorily explain to the court, has kept that room in Continental Mansion for the last 21 months!

39. Counsel for the plaintiff drew my attention to two cases cited in the supplement to Vol. I of Kemp and Kemp (3rd Ed.) Cap.17. (Steggles v. Merrigan and Richardson v. Symonds). The former was a decision of Atkinson J. at first instance; the latter was a decision of the Court of Appeal; but the cases do not appear to have been otherwise reported. I found Steggles case of no assistance to me. The facts in Richardson resemble more closely the facts in the present case except that in Richardson some degree of baldness (alopecia) appears to have been attributable to the accident; and the award, presumably, did not include any sum in respect of loss of earnings; but as, I think, loss of earning apacity would be negligible after plastic surgery, Richardson and the present case are comparable on the facts.

40. On the other hand, in personal injury cases actual awards made by English courts are not usually of much assistance to a Hongkong court. One has to bear in mind the vastly different social structure in a highly developed welfare state such as England. Of course, a perusal of the numerous cases cited in such text books as Kemp and Kemp gives one an overall picture of awards generally, and this enables a Hongkong court to assess the relative seriousness, (at any rate as that is judged by English courts) of injuries to the various parts of the body.

41. Taking the broad view as counsel suggested, it seems to me that justice would be done if general damages were fixed at $8,000.

42. There will therefore be judgment in favour of the plaintiff in the sum of $13,550 and costs.

Representation:

Mr. Ming Huang (K.Y. Woo & Co.) for the Plaintiff.

Mr. R. Mills-Owens (Johnson Stokes & Master) for the Defendant.