Tommy Chan and Another v. Yuen Ho-hung and Othres

HCA002170/1975

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2170 OF 1975

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Coram: Cons, J.

Date of Judgment: 18 October 1976

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JUDGMENT

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1. Both plaintiffs in this action are Assistant Surveyors in the Public Works Department of the Government, Each is in his middle 20's and single. Early one morning in July two years ago they were among the passengers in a taxi in Kowloon when it was involved in collision with a minibus. The defendants have admitted liability for the accident and submitted to judgment. Only the matter of quantum remains.

2. The first plaintiff was hardly hurt. He sustained two small lacerations, one on the left upper eyelid and the other on his cheek. He was not detained at all in hospital, although for one week he had a bandage on one eye and had to return periodically as an out-patient for the dressing to be changed. The only permanent reminder that he has of the accident is a minute scar or dent. This has brought about an extra fold in the eyelid which causes slight asymmetry with the other eye. He says that he feels embarrassed about this and that it causes discomfort, as though something was sticking in his eye and obstructing his view. He adds that he now becomes tired easily.

3. I think that he grossly exaggerates his symptoms. It is now 15 months since the accident and in that time he has not taken the trouble to consult one single doctor. He was examined for the purposes of this action only on the morning of the trial. The impression I received is that Dr. Otto Au, the doctor for the second plaintiff, was asked to have a quick look at the first plaintiff in the corridor while waiting for the case to be called on. The doctor recommended surgery to remove the scar and if necessary to balance the eyelid. The first plaintiff was examined again during the course of the trial by Dr. Ian Nicolson, who was called for the defence, Dr. Nicolson recommended similar surgery and put the cost at not more than $3,000.

4. The second plaintiff was not so lucky. He must have gone right into the windscreen and received multiple lacerations of the face and forehead. These needed 34 stitches. He had photographs taken almost immediately afterwards. As one would expect, he was not a pretty sight and it must have been both painful and acutely embarrassing for a while. He has now made a remarkably good recovery, but permanent scarring remains. This causes him discomfort in cold or changeable weather. He says that it makes him embarrassed, especially in mixed company and for this reason he now seeks to minimise his social activities. At the time of the accident he was engaged to be married, but afterwards he and his fiancee came to see less and less of each other and finally broke off the engagement. He puts the blame solely upon his appearance. His fiancee was not called to tell me her reason. How far scars make a face ugly or unsightly is of course very much a matter of personal opinion. The occasional scar is even sometimes thought to enhance a man's appearance. But the plaintiff has more than occasional scarring. His present condition can be seen from the photographs taken by Dr. Nicolson in July (exhibit 2). It will be improved to a considerable extent by plastic surgery. Once that is completed the residual scarring should not unduly detract from his normal appearance.

5. This action raises two points of interest. The first concerns the first plaintiff and is simply this. Should the court award damages to cover the cost of plastic surgery when the court is of the opinion that the plaintiff is unlikely to undertake the operation? It is tempting to say yes; it would be reasonable for the plaintiff to have the operation, two surgeons now recommend it; and it is not the practice of this court to control the manner in which the normal adult disposes of his damages once they have been awarded to him. But to do so in the present case would be to close the eyes to the obvious. Despite what he says, the first plaintiff is unlikely to have the operation. This is the only conclusion to be drawn from his inactivity, medically speaking, since the accident. Further he has not given his undertaking, as the second plaintiff has, to spend the appropriate damages to that end. He prefers instead to put up with whatever slight discomfort his injury may cause and take his compensation accordingly. That is not an unreasonable course. He is therefore entitled to take it. Some special damages have been agreed at $110. There is no loss of earnings or earning capacity. General damages are assessed at $1,500. In case it should be necessary I would record that half of this sum is intended to cover the period between the accident and today and the other half to cover the future.

6. The second point concerns the second plaintiff. In his case it is not a question of whether he will have the surgery or not; it is who ought to do it. If it is done by Dr. Au, it will require two operations and the cost of everything, including hospital fees and so on, would come to $19,000. If it is done by Dr. Nicolson only one operation would be required and the total cost would be approximately $3,000. No explanation has been given for such a surprising variation. It may perhaps be that Dr. Au intends more extensive surgery. His report (exhibit 1) says "The appearance of the scars is very obvious in five locations, after two operations, they will be much improved ...". Dr. Nicolson (exhibit 2) says "Plastic surgery could improve the scars of the right temple, nose and lower lip ... The other scars cannot be significantly improved by plastic surgery." But I do not know. This aspect was not explored at the trial. Counsel for the second plaintiff submits that a plaintiff has in any event the right to the surgeon of his choice, that this is axiomatic and part of the principle that the defendant must take his victim as he finds him. I agree that in practice matters will generally fall out this way. But I cannot agree that it is so as a matter of law. The plaintiff has a right to recover reasonable medical expenses. If he chooses to incur expenses that are more than reasonable in any particular circumstances he must meet the excess from his own pocket. In the present instance there is no suggestion of any disparity in skill or in the scale of the facilities offered by either surgeon. The only point taken is that Dr. Au estimates an improvement of approximately 70% whereas Dr. Nicolson estimates only 60%. Now a difference of 10% might well be significant where the plaintiff is a film star or some other person who depends on his public image for his livelihood. Or profession apart, if perhaps he is a person who by nature is inordinately concerned with his own appearance. But the second plaintiff is not. He did not even shave on the day when he was due to be examined by Dr. Nicolson. I think he too has exaggerated when it comes to the social consequences of his misfortune. Even then it is doubtful if a distinction of 10% really does exist. Both surgeons concede that it is very difficult accurately to assess the prospects in advance and that the estimates they have given are only general and approximate. I am not satisfied it would be reasonable to spend more than six times what would otherwise have been necessary upon the mere hope held out by such an uncertain difference.

7. Certain of the special claimed for the second plaintiff have been agreed at $440. There is no evidence to support the remainder. There is again no loss of earnings or earning capacity. General damages are assessed at $9,000, which include a sum of $4,000 to cover both the cost and the temporary discomfort of plastic surgery. This figure appears to be consistent with damages awarded for similar misfortunes in the past few years.

Representation:

Patrick Woo (H.M. So & Co.) for first and second plaintiffs.

Robert Tang (Chan & Ho) for first and second defendants.

Robert Tang (Johnson, Stokes & Master) for third and fourth defendants.