Lee Suk Ha v. Cheung King and Another

HCA000418/1979

IN THE SUPREME COURT OF HONG KONG

High Court No. 418 of 1979

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Coram: Mr Commissioner de Basto Q.C. in Court

Date of Judgment: 28th February 1980

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JUDGMENT

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1. On the 13th August, 1978 the plaintiff was a passenger in a car which was involved in a head-on collision with another car driven by the 2nd defendant.

2. At the commencement of the proceedings counsel informed me that liability was conceded and that, therefore, the only question before the Court was the quantum of damages. In the course of the trial it transpired that the special damages claimed, amounting to $21,385 were not in dispute. The whole of that sum (except for $300-) represented medical fees.

3. The defendants admitted that the plaintiff received in the accident multiple lacerations on the face which were sutured with fine silk - the plaintiff said she received 70 stitches (without anaesthetic) but Mr K.Y. Yu, F.R.C.S. who was the Medical and Health Officer who attended her at Queen Elizabeth Hospital said he thought there were up to 50 stitches "or slightly more" - he said 4 or 5 stitches would be used per centimetre - he kept ransacking his notes. It was quite clear the doctor did not really know how many stitches were in fact made.

4. The defendants did not admit that the plaintiff suffered, as a result of the accident, damage to, or severance of, the nerve supply to the right side of the scalp and forehead resulting in parathesia, or loss of feeling in that area, or that she had fractured her nose during the accident. Let me say at once that, having heard all the evidence, I have not the slightest doubt that those two injuries were sustained in the accident.

5. Although the plaintiff did not suffer from headaches in the hospital (where she was detained for four days) about two weeks after her discharge she began to suffer from headaches and she also noticed that the side of her "head" was numb. On the 14th September, 1978 she consulted Mr Peter Wu, F.R.C.S. who diagnosed severance of the nerves serving the right side of the scalp and who also found that the plaintiff was suffering from insomnia, lethargy and anxiety depression. Mr Wu made out a report on the 6th January 1979 and a supplementary one on the 17th August 1979 (Exhibits P1 and 1A). He last saw the plaintiff on the 21st February 1979. He said that parathesia was "rather tiresome" for persons experiencing it. Dr Otto Au, in one of his reports, says of parathesia that "at times it can be irritating". There are receipts for at least twenty consultations with Mr Wu. He said he gave the plaintiff anti-depressants of the tricyclic group. He testified that, assuming the plaintiff/were not to receive any further plastic surgery, she would need periodic medication, presumably anti-depressants and would benefit from the help of a pyschiatrist.

6. The plaintiff testified she had a boyfriend before the accident but that after the accident she lost her self-confidence-she did not like to meet people and she lost her enthusiasm for her work. She said that whereas before the accident when people spoke to her they looked "at her eyes" now they look at her scars. She says her right eye brow "protrudes". She appears to be most conscious of the scars on her cheek. She also complains that her nose is out of alignment. She says her social life has been affected because she does not now like to associate with people. She says she looks "very unnatural".

7. Mr Fung for the defendants suggested to the plaintiff that the disfigurements of which she complained would not now be apparent "to the eye of the onlooker". She replied, "I don't know about other people but I feel it is very obvious myself." I accept the plaintiff's evidence. It may be that the plaintiff is over-conscious of the alterations to her face but it is of course trite law that the defendants must take the plaintiff as she is.

8. Dr Otto Au, a plastic surgeon, performed three operations on the plaintiff. It is not in dispute that a further operation or operations would not improve the present position. In his report of the 6th July 1979 (after the three operations had been performed) Dr Au stated that the plaintiff's total recovery was about 75%. The residual scar deformities he described as follows:

9. I have examined the plaintiff's face. The most obvious of the above disfigurements are the scars on her right cheek. The other disfigurements are less obvious and would probably only be noticed by those who look closely at the plaintiff. The scars on her cheek can probably be, to some extent at least, camouflaged by make-up. But I have not the slightest doubt that all these disfigurements are very real to the plaintiff and figure prominently in her mind and that they are a source of distress to her. I think it highly likely, at least until she marries or becomes much older, that she will suffer from periods of depression. I have no doubt that her social life has suffered and will probably continue to suffer because of her loss of self-confidence and her feeling of looking "very unnatural".

10. I do not think it is in dispute that the scars she now bears are permanent; if not, I so find. Also, her parathesia is permanent which will serve, apart from any disfigurement, to remind her that she is "different" from other people. Mr Fung has quoted a large number of cases and has submitted, inter alia, that the Hong Kong decisions are to be preferred to English ones. As a general proposition I agree but, particularly in cases where the plaintiff's state of mind is involved, each case must be carefully examined on its own facts. The impression, in cases of this kind, made by the plaintiff on the court is vital.

11. The plaintiff at the time of the accident was just under 30 years of age and was the manageress of a silverware factory.

12. I award the plaintiff $25,000 by way of general damages with interest at the rate of 10% from the date of service of the Writ till today. I also award the plaintiff $21,385 as special damages with interest at the rate of 5% from the date of the accident till today. These sums to be paid into Court within 14 days.

Representation:

Mr. Mumford, Counsel for the Plaintiff.

Mr. Daniel Fung, Counsel for both Defendants.