Heidi Lee Yin Fong and Another v. Tsang Kwong Hoi and Others
Read the full judgment text of HCA 1621/1975 on BabelCite. This High Court CFI judgment.
1. On the 11th June 1974 both plaintiffs were standing on the pavement adjacent to a bus-stop on Hiram's Highway, Sai Kung, when they were knocked down by a Goods Vehicle which mounted the pavement. They both suffered injuries as a result.
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HCA001621/1975
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. Registrar O'Dea in Chambers. Date of Judgment: 20th June 1977. Mr. K. Bokhary instructed by Wilkinson & Grist for Plaintiffs. Mr. M. Asome instructed by Chan & Ho for 1st and 2nd Defendants. Mr. Woo of F. Zimmern & Co. for 1st and 2nd Third Parties. ----------------- DECISION ----------------- 1. On the 11th June 1974 both plaintiffs were standing on the pavement adjacent to a bus-stop on Hiram's Highway, Sai Kung, when they were knocked down by a Goods Vehicle which mounted the pavement. They both suffered injuries as a result. 2. On the 28th March, 1977 interlocutory judgment was entered in favour of the plaintiffs against the 1st and 2nd defendants for damages to be assessed. It was further ordered that the 1st and 2rd third parties indemnify the 1st and 2nd defendants to the extent of one-third of the damages assessed. First Plaintiff: 3. This young lady was aged 21 years at the time of the accident. She is single and employed as a secretary. On her admission to hospital she was treated for multiple lacerations to her face, one small laceration to her left leg, a discharge from the left ear and left facial palsy. She also required dental treatment. 4. On her discharge from the hospital on 25th June 1974 the facial palsy had almost completely recovered but she suffered from a degree of deafness to the left ear, facial scarring and the loss of three teeth. 5. She consulted two specialists concerning her partial deafness and facial scarring. Two further periods of hospitalization followed in July 1974 and April 1976, when she underwent operations to clear the ear canal and for cosmetic surgery. 6. All possible treatment has now been completed and she is left with the following permanent injuries:-
7. I had the opportunity of hearing this plaintiff give evidence and observing the nature of the scarring to her face. I am satisfied she suffered a great deal of pain and discomfort immediately after the accident and also subsequent to the surgical operations that followed. Fortunately her injuries have not resulted in any loss of earning capacity. The partial deafness to the left ear should not significantly detract from her enjoyment of life. While the facial scar is not outstandingly obvious I have taken into account that this plaintiff is a young single woman who would, like most other women of her age, be extremely conscious of her appearance. The likelihood of her developing a factial tie in later life is only considered as a possibility but I have not entirely discounted it in assessing the damages to be awarded. 8. She has described her appearance as a result of her dental repairs as being unsatisfactory. I cannot altogether agree with this but I do accept that a denture can never adequately replace natural teeth. 9. I have gained assistance from a number of cases cited to me and consider that an appropriate award for general damages for this plaintiff would be $25,000. 10. Special damages have been agreed as follows:-
11. I award interest on the general damages at 8% from the date of service of the writ, namely, 10th July 1975 and on the special damages at 4% from the date of the accident. The plaintiff will have her costs with a certificate for counsel on the assessment. Second Plaintiff 12. At the time of the accident this plaintiff was aged 23. On her admission to hospital her injuries were as follows:-
13. The wounds to the face were stitched and on 18th June 1974 she was transferred to the orthopaedic unit of Kowloon Hospital and discharged the following day. Her leg was still in plaster and she walked with the aid of crutches. 14. Shortly after her discharge she consulted Dr. W.J. Hefferman who found on examination evidence of considerable injury to both eyelids. The left eye was red and painful and she was admitted to Matilda Hospital. The lacerations to the left eye had caused the inner half of the lower lid to turn inwards and the outer half was everted. This led the eye to water constantly and pain resulted from the eye lash lying across the cornea. The eye was also prone to infection and inflammation. 15. In September 1974 an operation was performed to re-position the inner half of the eyelid and this proved successful. 16. Dr. I.H. Nicolson was consulted to consider the cosmetic complaints resulting from the accident. He found multiple small scars over most of the face and a conspicuous assymetry of the eyelids. The left eye was consequently a different shape from the right. She also had noticeable scars to the left knee, right arm and left hand. 17. A further operation was carried out in March 1977 in order to improve the plaintiff's cosmetic appearance. No further treatment is considered practicable. 18. The assymetry between the right and left eyelids remains and conspicuous facial and other scarring will be permanent. No permanent disability resulted from the fracture to the leg and there is no impairment of vision. 19. It is fair to say that no evidence was given to suggest that this plaintiff has suffered any loss of earning capacity. She has certainly undergone a very distressing ordeal. The pain and discomfort associated with her injuries and subsequent treatment would have been considerable. She is now left with permanent cosmetic injuries to her face and limbs. From my own observations the assymetry of the eyes is clearly outstanding and the facial scarring is not only conspicuous but also widespread. Such disfigurement is a very significant disadvantage for a single woman of her age. I have turned for guidance to a number of decisions which have considered the assessment of damages for cosmetic injuries. The most helpful cases were as follows:- WONG Ka-lei v. YUNG Chik-wing (O.J.A. No. 1248 of 1969) 20. A female plaintiff suffered lacerations to the face when a car windscreen shattered. Some of the lacerations had to be stitched and plastic surgery estimated at $3,000 was required. General damages of $11,000 were awarded. TANG LO Lai-chun v. YIM HO Wai-lin (O.J.A. No. 2017 of 1972) 21. The plaintiff, a married woman in her middle thirties, was attacked by four boxer dogs leaving large areas of unsightly scar tissue and wastage of flesh on her left arm. There was also some loss of earning capacity involved. General damages were assessed at $22,050. LEE Wai-king v. FUNG Wai-tung (O.J.A. No. 2044 of 1972) 22. The plaintiff, a single girl aged 23 years, suffered multiple lacerations to her face. She suffered slight disfigurement and extensive dental injuries. She suffered no permanent disability or loss of wages. General damages: $18,500 which included $8,500 for future dental treatment. 23. While previous awards can provide some guidance as to the damages to be awarded, no greater reliance should be placed on them particularly when cosmetic injuries are involved. Each case must be decided on the circumstances existing such as the sex and age of the plaintiff, her marital status, the nature and extent of the disfigurement and other relevant factors. 24. I am satisfied that the disfigurement suffered by this plaintiff is more than slight. As an attractive and intelligent young woman these impairments to her appearance will undoubtedly cause her embarrassment and distress. I assess general damages at $40,000.00. 25. Special damages were agreed:
26. There will be interest at 8% p.a. on general damages and 4% p.a. on special damages. 27. Costs to the plaintiff with a certificate for counsel on the assessment. 28. Dated this the 20th day of June, 1977.
Representation: Mr. K. Bokhary instructed by Wilkinson & Grist for Plaintiffs. Mr. M. Asome instructed by Chan & Ho for 1st and 2nd Defendants. Mr. Woo of F. Zimmern & Co. for 1st and 2nd Third Parties. |