Tse Yim Kwong v. Mak Yuk Koi and Others

HCA002118/1987

1987 No.A2118

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master P.H. O'Donnell in Court.

Date of Hearing: 19 January 1989

Date of Written Decision: 10 February 1989

Date of Delivery: 10 February 1989

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ASSESSMENT OF DAMAGES

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1. The Plaintiff sustained severe burn injuries following an explosion and fire in the restaurant where he was employed as a waiter on 20th June, 1984. The explosion and fire was caused by a leakage of LP gas which ignited when the 1st Defendant as a servant of the 2nd Defendant was replacing a LP pas cylinder for a "dim-sum" trolley. The 3rd Defendant was a firm which carried on the business of refilling, repairing and maintaining LP gas cylinders and had refilled the LP gas cylinder and replaced the valve of the said cylinder prior to the accident.

2. The writ was filed on 13th April, 1987 and the three Defendants filed Defences the Statement of Claim. Interlocutory judgment was entered in favour of the Plaintiff by consent on the basis of an apportionment of 60% liability to the 1st and 2nd Defendants and 40% liability to the 3rd Defendant with damages to be assessed.

3. At the assessment on the 19th January, 1989 various smaller items were agreed between the parties. These items are set out as follows:-

4. The matters in dispute were the Plaintiff's pre-assessment and post-assessment loss of earnings and the award for pain, suffering and loss of amenities.

5. In opening the Plaintiff's case, Counsel, Mr. T Wai, produced a Bundle of 20 Documents and photographs extending to 55 pages by consent of Defendant's Counsel. Mr. Wai referred to the medical reports of Dr. Yip and Dr. Ho as items 12 and 13 respectively in the Bundle of Documents. Dr. Yip in his report confirmed that the Plaintiff was admitted to Princess Margaret Hospital on 20th June, 1984 with burns over 12% of his body on both hands and forearm and his face. Debridement and skin grafting operations of both forearms and hands were carried out on 26th and 30th June, 1984 and the 4th July, 1984. Dr. Yip also confirmed that the Plaintiff was discharged on 31.7.84 and that he was fitted with a pressure garment for the hypertrophic scar which developed and that he received physiotherapy for stiffness of his left wrist and fingers. The Plaintiff was granted sick leave from 20th June, 1984 to 29th March, 1985. Dr. Ho in his report stated that the Plaintiff was referred to the Plastic and Reconstructive Surgery Unit of Princess Margaret Hospital on 8th February, 1985 for further reconstruction surgery after the pressure garment and injection of keloid had been given to the patient for more than a year. Dr. Ho confirmed that, because progress of the scar over the little fingers was not satisfactory, reconstructive surgery for scar contracture was carried out over both little fingers on 21st July, 1986.

6. Counsel for the Plaintiff also referred to the reports of Dr. Ian Nicolson dated 1st July and 20th September, 1986, and 19th December, 1988 (at items 14, 15 and 20 respectively in the Bundle of Documents produced). In his report dated 15th July, 1986, Dr. Nicolson concluded that the Plaintiff had a permanent cosmetic disability as a result of the accident on 20th June, 1984 and that his burn scars would not change to any significant degree in the course of time. He referred to a mild limitation of function in both little fingers which could be corrected by plastic surgery but also commented that the Plaintiff's cosmetic disability could not be reduced by plastic surgery. There were a series of 24 colour photographs attached to Dr. Nicolson's report which graphically depict the Plaintiff's cosmetic disability. In his letter dated 20th September, 1986 he referred to the Plaintiff's disability in these terms:-

"I would assess percentage disability for this case at 4% total : i.e. 2% for stiffness and loss of function and 2% for cosmetic loss. However, I wish to draw attention to the point that this man has been employed as a waiter and accordingly the scars on his arms and hands will most certainly diminish his prospects for successful employment in this capacity by considerably more than the 2% cosmetic disability I have assessed."

The medical evidence has not been challenged at this assessment and will be accepted.

7. The Plaintiff, Tse Yim Kwong, was the first witness called by Mr. Wai. His evidence was that he was 45 years of age and had come to Hong Kong in 1960. He said he was single and lived in a housing estate. The Plaintiff described the circumstances and cosequences of his accident in the Helena Restaurant on 20th June, 1984. He stated he had been in great pain from his burn injuries, particularly, when the open wounds were being cleaned and dressed twice a day while in hospital and had taken medication to relieve this pain and fever. Mr. Tse said he could not hold a spoon to eat while in hopsital and was fed by the nurses, who also had to assist him with his clothing when he wanted to urinate. After his discharge from hospital the Plaintiff said he was barely able to look after himself and needed others to assist him cooking meals, cleaning and washing his clothes. He said that the burned area of flesh was very stiff during his recovery period and that an operation was necessary in July, 1986 to improve the flexibility of the little fingers of each hand which suffered from acute stiffness. He confirmed he was on sick leave from 20th June, 1984 to 31st July, 1986 which was corroborated by 22 sick leave certificates produced as item 11 in the Rundle of Documents. Mr. Tse said he did not work during the period he was on sick leave. He is concerned and embarrassed that people stare at his ugly scars while he is in public places and while serving food to himself at a banquet. He claims that the sight of his scars in a restaurant affects the appetite of other diners. The plaintiff says he avoids attending banquets for this reason and wears garments with long sleeves even in summer to cover up his noticeable scars from the sight of others in public. He says he does not go swimming in summer and avoids social gatherings now because of these scars over his body. Mr. Tse gave evidence that when he goes for a job interview the potential employers doubt his ability and have no confidence in him when they see his stars. He says he can only do low class jobs, such as, a casual worker, which are poorly paid because he is unable to do jobs which required skill or special knowledge. The Plaintiff says he feels a strange weakness in his joints when lifting heavy objects so that he is unable to do heavy manual work. He says .that the skin over the scarred area of his body is stiff and feels tight as though the skin was being stretched. Mr. Tse said he had been working as a waiter at the Helena Restaurant for 3 months prior to the accident, but that he had worked as a waiter in the restaurant industry in Hong Kong since he arrived here in 1960. He claims he would have continued to work as a waiter but for this accident as he is unable to adjust to other occupations. He said that after his period of sick leave he eventually got work for 8 months as a casual odd-job worker in a plastics factory from November, 1986 to June, 1987. The Plaintiff says he left this employment after discovering pain in his joints and waist over the area from which skin had been grafted. He says he had a rest from work and went to see a doctor. He says that when he does not feel pain which comes and goes he will work as a casual odd-job worker in a plastics or textile factory earning $1,200.00 per month. He has been unemployed for 2 months prior to this assessment. Mr. Tse says he has tried to find employment as a waiter on 10 occasions without success as potential employers query whether he is able to lift the food to serve to customers and have an adverse reaction to the sight of his scarred hands.

8. In cross-examination by Miss J. Pinto as Counsel for the Defendants, the Plaintiff admitted he had received $1,700.00 per month from the 2nd Defendant as his employer while on sick leave and that payment was increased to $1,800.00 per month for the period from 1st May, 1985 to 1st July, 1986. In addition he admitted receiving the sum of $31,860.00 as employee's compensation from his employer. The Plaintiff claimed that he resigned from Helena Restaurant Ltd. after his period of sick leave expired because his employer was only prepared to offer him a position as s night watchman at the restaurant with a reduced salary of $1,100.00 to $1,200.00 per month plus any tips from customers. Mr. Tse denied he had been offered this position at a salary of $1,700.00 and tips of up to $1,000.00 per month and commented that the 2nd Defendant did not seem to have the intention of re-employing him. He said in cross-examination that even if he was offered a Job as a waiter he did not consider he had the ability to do the job because of embarrassment over his scarred hands and that he would be unable to lift tables and chairs as he had done prior to this accident. The Plaintiff said he would not be prepared to wear gloves, if employed as a waiter by the 2nd Defendant, as he claimed it would be totally impossible to do the work properly while wearing gloves. Mr. Tse admitted that he only worked 10 to 15 days a month as a casual odd-job worker and was not able to work a full month because of the medical condition arising from his injuries. He admitted that previously he only went swimming once or twice a month during summer prior to his accident and this activity was not important to him.

9. Counsel for the Defendants called Mr. LEE Tin Lam, the accounts manager of the Helena Restaurant Ltd. (the 2nd Defendant), to give evidence. Mr. Lee's relevant evidence was that the Plaintiff had been paid a basic salary of $2,550.00 and allowances for foods, meals and resting facilities valued at $400.00 per month in June, 1984 at the date of this accident. By June, 1985 the basic salary for waiters increased to $2,700.00 per month and by June, 1986 the basic salary increased to $2,850.00 per month. By June, 1987 a waiter's basic salary had increased to $2,900.00 per month but by June, 1988 the basic salary had increased substantially to $3,900.00 per month because of the labour shortage and the need to offer higher wages to attract waiters. The allowance for food and meals has remained constant and is still valued at $400.00 per month. When asked this witness said that it was still possible that the Helena Restaurant would be prepared to offer the Plaintiff a job as a waiter if he was prepared to wear gloves while serving food to customers. Mr. Lee also said that the restaurant would be prepared to employ the Plaintiff working in the kitchen in either the "dim-sum'' section or the roast meat section where the wages for such workers would he the same as a waiter or maybe a little higher. He claimed that after a period of time and training, when the Plaintiff became experienced in the skills of kitchen work, he would be paid at the full rate. This witness said that the Plaintiff came to see him about his resignation when his period of sick leave expired and the Plaintiff was paid the money due to him. Mr. Lee said that on a prior occasion the Plaintiff had been offered a job as a watchman to the restaurant at a salary of $1,700.00 per month aid tips from customers. The witness said that the Plaintiff claimed he could not manage the work of a waiter but that he could not produce a medical certificate to this effect.

10. In cross-examinations, Mr. Lee denied that the 2nd Defendant was unwilling to re-empoly the Plaintiff as a waiter because of the outward appearance of his scarred hands. He also denied repeatedly asking the Plaintiff to take a rest when he sought re-employment and that the restaurant had not offered him a job as a watchman at a much lower salary to force the Plaintiff to resign. Mr. Lee claimed the 2nd Defendant was not reluctant to re-engage the Plaintiff because of the noticeable scats on his hands and forearms and claimed that it was immaterial whether or not the Plaintiff wanted to wear gloves while working as a waiter in their restaurant. Mr. Lee denied that the scars on the Plaintiff's hands would be a problem to the restaurant and admitted that while some customers would object it would not be a very serious matter. The witness also confirmed that the basic salary for waiters include tips from customers which are pooled into a common fund by the management.

11. The first head of damages to be considered on this assessment is that for pain, suffering and loss of amenities. Mr. Wai for the Plaintiff contends that this award should be $100,000.00 on the basis that the Plaintiff's main disability is a cosmetic one with some functional impairment. As to functional impairment Plaintiff's Counsel relies on the Plaintiff's evidence to this effect and on his complaints to Dr. Nicolson when examined on 19th December, 1988 as set out at the top of page 2 of that report (set out as item 20 in the Bundle of Documents) as follows:-

"(3) Stiffness, weakness and discomfort in his hands.

(4) Vague ache at times in his left shoulder and lower back for the past year."

Therefore, Mr. Wai contends that the Plaintiff suffers functional impairment in the form of discomfort, pain and weakness. He relies on the award of Master Betts on 16th May, 1985 in LI Chim Ying v. LAM Siu Nam and HO Chi Cheng where a Plaintiff with a cosmetic injury to her left shoulder was awarded $80,000.00.

12. Counsel for the Defendants refereed to the medical reports of Dr. Nicolson to refute the Plaintiff's claim that he suffers from functional impairment in his hands, arms, and joints as a result of this accident. In particular, Miss Pinto, points to page 2 of Dr. Nicolson's report dated 19th December, 1988 where he states that the function of the right and left arms and hands of the plaintiff are normal. On this basis, Miss Pinto contends that the Plaintiff's disability is wholly cosmetic and not functional. She referred to 5 cases where varying awards between $30,000.00 and $100,000.00 had been made for cosmetic disability. Counsel for the Defendants submits that to compensate the Plaintiff for his cosmetic disability he should he awarded $60,000.00.

13. In his latest report dated 19th December, 1988, Dr. Nicolson details the skin irregularities and scarring on the Plaintiff's head, left ear, neck, right upper arm, right forearm and hand, left arm, right leg and left leg. Most of these scars are described by Dr. Nicolson as being noticeable and in some cases conspicuous, whereas the scars to the right forearm, hand and fingers ate described as being ugly, irregular, pigmented burn scars. The Plaintiff's evidence that he suffers considerable embarrassment from his cosmetic disability, particularly, when he eats at a public restaurant, is accepted. This Plaintiff clearly has a permanent and serious cosmetic disability for which an award of $100,000.00 under this head is justified.

14. The next head of damages in dispute is the claim for loss of earnings. Firstly, the pre-assessment loss of earnings will be considered. The Plaintiff relies on a monthly figure of $3,625.00 assessed on the median of a waiter's monthly salary at the date of the accident ($2,950.00) and a waiter's salary at the date of the assessment ($4,300.00). So that for the sick leave period from 20th June, 1984 to 31st July, 1986 and the 3 month period of re-admission to Princess Margaret Hospital for surgery and treatment from 1st August, 1986 to 31st October, 1986 the claim is 27 months x $3,625.00 = $97,875.00. For the 8 month period from 1st November, 1986 to 30th June, 1987 when Plaintiff earned $1,800.00 a month as an odd-job worker in a plastics factory, the claim is $14,600.00 computed as follows:-

15. $3,625.00 - $1,800.00 = $1,825.00 x 8 months = $14,600.00. The last part of the Plaintiff's claim was for the period from 1st July, 1987 to the date of the assessment on 19th January, 1989 being a period of 18½ months. From the median of $3,625.00 is deducted the Plaintiff's monthly earnings as a casual odd-job worker at $1,200.00 per month which results in a figure of $44,862.50 for this period. ($3,625.00 - $1,200.00 = $2,425 x18.5 months = $44,862.50). The Plaintiff's total claim for pre-assessment loss of earnings is $157,337.50.

16. Counsel for the Defendants contends that the Plaintiff has failed in his duty to mitigate his claim for loss of earnings. Miss Pinto submits that the Plaintiff is unwilling to work as a waiter or in other positions in the 2nd Defendant's restaurant and that if he were to wear gloves, this would overcome his embarrassment over the scarring, of his hands. Counsel for the Defendants points out that the Plaintiff is only prepared to take casual work on a part-time basis over 15 to 20 days a month, when he should be able to return to a full-time job. It is the Defendants contention that the Plaintiff should not he compensated for loss of earnings which he could have avoided by taking reasonable steps to mitigate same. Counsel for the Defendants produced the following schedule to compute the Plaintiff's pre-assessment loss of earnings as $53,160.00:-

LESS:-

$129,020.00 - $75,860.00 = $53,160.00

17. Counsel for the Plaintiff in reply submitted that the Plaintiff had not been offered a job as a waiter, either by the 2nd Defendant or any other restaurant, and that regardless he was now unable to cope with the work required of a waiter. Mr. Wai contended the Plaintiff because of his injuries was only able to work as a casual odd-job worker for reduced wages. Counsel submits that the Plaintiff had done his best to find suitable employment and that he should not be required to work in kitchen positions in a restaurant which require special skill and expertise. Mr. Wai referred to the report from the Commissioner of Labour dated 19th November, 1986 (set out as item 6 in the Bundle of Documents) on the employability of the Plaintiff where it is stated that his choice of jobs would be confined to non-skilled occupations, such as, packer, assembler, watchman, security guard, lift operator or equivalen light duty jobs where the market rate for such jobs are $1,900.00 per month or a daily rate of $75.00 to $80.00. This report also stated that the Plaintiff could not work as a waiter again because of the scars on both of his hands. Plaintiff's Counsel also referred to statistics as to wage rates from the Census and Statistic Department (set out as item 6 in the Bundle of Documents) as evidence of the wages paid to the workers in the type of employment now open t the Plaintiff. Mr. Wai also relied on the comment of Dr. Nicolson in his letter of 20th September, 1986 referred to earlier that the Plaintiff's scars on his arms and hands had diminished his prospects being re-employed as a waiter.

18. After consideration of both the documentary evidence adduced and the oral evidence given on this assessment the Court is satisfied that the only occupations open to the Plaintiff since this accident are those set out in the above report of the Commissioner of Labour. It is not accepted that the 2nd Defendant offered re-employment to the Plaintiff as a waiter despite the evidence to that effect from Mr. Lee Tin Nam. The Plaintiff's evidence is accepted as the truth where there is conflict with Mr. Lee's evidence. Mr. Lee had a vested interest in making the claims that the 2nd Defendant had offered previously and were still prepared to re-employ the Plaintiff as a waiter or in some other position in the kitchen of the restaurant. As indicated earlier the Court has found that the Plaintiff should not he expected to resume his occupation as a waiter or in a restaurant kitchen. The Plaintiff had been employed full-time as a casual odd-job worker in a plastics factory earning $1,800.00 a month from 1st November, 1986 to 15th June, 1987. The Court does not accept Plaintiff's evidence that he is unable to do this type of lighter work on a full-time basis and finds he should have mitigated his loss of earnings by continuing to work in this or a similar capacity on a full-time basis since, rather than in a part-time basis for 10 to 15 days a month.

19. The pre assessment loss of earnings will be calculated as follows:-

(1)    period from date of accident to expiry of sick leave (20.6.84 to 31.7.86) being 25 1/3 months and not 24 months as stated by both Counsel. The monthly salary figure will be assessed as the median of a waiter's salary at the date of the accident - $2,950.00 per month and the monthly salary at June, 1986 - $3,250.00. 25 1/3 months x [($2,950 + $3,250÷2) = $3,100] = $78,532:

The payments made by the 2nd Defendant as the employer of the Plaintiff during this sick leave period need to he deducted.

$1,700 x 10 months from 1.7.84 to 31.4.85 = $17,000.00

$1,800 x 15 months from 1.5.85 to 31.7.86 = $27,000.00

________ $44,000.00 ________

$78,532.00 less $44,000.00 leaves a balance of

$34,532.00 outstanding for this period.

(2)    The claim by Plaintiff's Counsel that the Plaintiff was readmitted to Princess Margaret Hospital for treatment is not supported by evidence as the memo from that hospital (set out as item 7 in the Bundle of Documents) states that he was readmitted from 18.7.86 to 22.7.86. However, the Court will accept that the 3 month period from 31.7.86 when Plaintiff's sick leave expired and the 1.11.86 when he started full-time employment in a plastics factory was a reasonable period within which to find suitable alternative employment. For this period from 1.8.86 to 31.10.86 the Plaintiff will be allowed a waiter's monthly salary from June, 1986 being $3,250.00 x 3 = $9,750.00.

(3)    For the 8 month period of Plaintiff's employment in a plastics factory from 1.11.86 to 30.6.87, the same monthly figure of a waiter's salary at that time will he used, i.e. $3,250.00. From this figure, the Plaintiff's actual earnings of $1,000.00 will be deducted $3,250.00_.-,$1,800.00 = $1,450.00 x 8 months = $11,600.00.

(4)    For the period from the Plaintiff ceasing full-time employment, as a casual odd-job worker from 1.7.87 to the date of this assessment on 19.1.89, being a total of 18 2/3 months, the monthly salary will be assessed as the median of a waiter's salary as at June, 1987 being, $3,300.00, and the present salary of $4,300.00, that is, $3,300.00 + $4,300.00÷2 = $3,800.00. From this monthly salary needs to be deducted the earnings the Plaintiff could have earned in the alternative occupations available to him if he had worked on a full-time basis. In this respect, the figure of $1,900.00 per month for such work referred to in the letter from the Commissioner of Labour dated 19.11.86 and supported by the statistics from the Census and Statistics Department will be accepted so that this part of the claim is computed as follows:-

$3,800 - $1,900 = $1,900 x 18 ²/₃ months = $35,465. From this total figure of $91,347.00 ($34,532.00 + $9,750.00 + $11,600.00 + $35,465.00), the employee's compensation payment of $31,860.00 must he deducted. The Plaintiff's claim for pre-assessment loss of earnings is assessed as $91,347.00 less $ 31,860.00= $59,487.00.

20. The post-assessment loss of earnings was the remaining head of damages in dispute. Miss Pinto submitted for the Defendants that the Plaintiff has no continuing loss of wages or earnings on the usual multiplicand/multiplier basis and that in this case, a lump sum award for loss of earning capacity was appropriate. Counsel for the Defendants, contends in that there is no medical or other reason why the Plaintiff with his long experience should not be re-employed as a waiter or other position in a restaurant where his former employer is prepared to offer him such employment. It was submitted on behalf of the Defendants that the award for the Plaintiff's handicap in the labour market, or, in other words, his loss of earning capacity should be $50,000.00. Miss Pinto referred to two assessments in 1987 where Plaintiffs with 18% and 8% disability were awarded sums of $60,000.00 and $40,000.00 respectively for loss of earnings. If the alternative approach is adopted, Counsel for the Defendants suggest a multiplier of 9 for the Plaintiff as a 45 year old male and a multiplicand of $4,300.00 less the Plaintiff's potential present earnings. In this respect, Miss Pinto relies on the wages of a packer/assembler and watchman/security guard in June, 1986 as $2,700.00 per month as set out in the memo from the Commissioner of Census and Statistics (at item 6 in the Bundle of Documents). To this monthly figure Counsel for the Defendants would add 25% for wage rises since to assess the Plaintiff's potential earnings at present as $3,375.00 so that past assessment loss of earnings are assessed as follows:-

21. $4,350.00 less $3,375.00 x 12 x 9 = $105,300.00.

22. Counsel for the Plaintiff advocates that the traditional multiplicand/multiplier approach should be adopted as there is a continuing loss to the Plaintiff which can be quantified. After originally proposing a multiplier of 11 in the Particulars of Claim, Mr. Wai, in his submission, was prepared to concede that the appropriate multiplier for a 45 year old male at the date of assessment should be 9, as proposed by the Defence. On the basis Mr. Wai claims that as the present salary for, a waiter was $4,300.00 with the deduction of the Plaintiff's most recent salary of $1,200.00, the multiplicand should be $3,100.00 from the date of the assessment Therefore, the Plaintiff's Counsel assesses the Plaintiff's Counsel assesses the Plaintiff's post-assessment loss of earning as follows:-

23. $4,300.00 - $1,200.00 x12 x 9 = $334,800.00.

Mr. Wai for the Plaintiff submitted that a lump sum award for loss of earning capacity was inappropriate in this case, as in the cases relied on by Counsel for the Defendants there was no basis on the evidence in those cases to apply the usual multiplicand approach to the future loss of earnings claims.

24. The Court has already decided that the Plaintiff should not be expected to resume his former occupation as a waiter despite the belated offer by his former employer. Furthermore, it has been determined that the Plaintiff's potential earnings doing lighter work on a full-time basis in the alternative occupations referred to earlier was $1,900,00 per month in 1986. Taking account of increased wages arising from both the labour shortage in Hong Kong, and inflation since 1986, an increase of 15% on this sum will be allowed - $1,900.00 x 15% = $2,185.00. The multiplicand can be arrived at by using the median of $3,800.00 adopted for the last period of pre-assessment^, earnings and deducting, the Plaintiff's potential earnings of $2,185.00 = $1,615.00. Applying the agreed multiplier of 9, the award under this head of damages would be: $1,615.00 x 12 x 9 - $174,420.00,

25. A summary of the awards made under the various heads of damages are as follows:-

26. There will be usual interest at 2% on the general damages for pain, suffering and loss of amenities and interest on the special damages at 4 1/16% from the date of the accident. The costs of this assessment are to be met by the Defendants, to be taxed if, not agreed with a Certificate for Counsel. The Plaintiff's own costs to he taxed in accordance with Legal Aid Regulations.

Representation:

Mr. T. Wai instructed by Director of Legal Aid for the Plaintiff.

Miss J. Pinto instructed by Deacons for the 1st and 2nd Defendants and instructed by Paul Kwong & Co. for the 3rd Defendant.