Lisa Maree Sabidussi v. The Mother Superior of the Soeurs De Saint Paul De Chatres (Hong Kong)

HCA000968/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.968 OF 1975

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Coram: Mr. Registrar Barnett in Chambers.

Date of Judgment: 11th August 1975

Mr. Mayne instructed by Messrs. Fairbaim, kwok & Wang for the Plaintiff.

Mr. Bunting instructed by Messrs. Yung, Yu, Yuen & Co. for the 1st Defendant.

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ASSESSMENT OF DAMAGES

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1. The plaintiff, who was a girl of 5 at the time, received an electrical burn on her right leg while undergoing an operation in the 1st Defendant's hospital. The 1st Defendant filed no defence and judgment for damages to be assessed was obtained against the 1st Defendant.

2. Notwithstanding that the action is at present continuing against the 2nd and 3rd Defendants. I gave leave under 0.37, r.3 for damages to be assessed at this stage. I was given to understand that the action would be discontinued against the 2nd and 3rd Defendants.

3. The only evidence was that of Dr. Ian Nicholson, a specialist in plastic surgery, called on behalf of the plaintiff. The plaintiff herself, and her family, have left Hong Kong permanently.

4. Dr. Nicholson examined the plaintiff about 4 months after the burn was inflicted. He found a conspicuous, unsightly and discoloured scar resulting from the burn measuring 48 mm x 32 mm on the outside of her right calf. The skin covering the scar was very thin and would ulcerate easily when traumatised. The skin would break more readily than normal skin. The burn would have taken 2 or 3 months to heal. He produced two colour photographs he had taken (Ex. Pl). He advised the plaintiff's parents to leave the scar until she was a teenager before any skin graft operation was carried out, as the result of graftingis unpredictable and the plaintiff's own views and feelings should be known. Also, an operation at the present time would have a slight possibility of hypertrophy and keloid.

5. Dr. Nicolson explained that the unpredictability of the operation was in the colour match, not the actual "taking" of the graft which would in all probability be successful. It was more likely than not that the colour wpuld not match and the graft would therefore always be noticeable. Further-more, there would always be a scar round the circumference of the graft, and there would be a scar at the donor area larger than the original scar. However, after the graft, the skin would be strong and healthy. There would, however, always be a slight depression due to the loss of underlying fatty tissue.

6. The cost of the operation at present would be $5,000.

7. Dr. Nicholson was cross-examined. The only matters of significance to emerge were that Dr. Nicholson would have carried out the operation during the healing period which would have had a good functional result. He could not be certain about the cosmetic result. He also confirmed that, if the operation were to be carried out when the plaintiff became a teenager, the cosmetic result might be worse, and the plaintiff would have to be warned of the risks.

8. No evidence was called for the 1st Defendant.

9. As far as general damages are concerned, the main dispute is over the cost of the operation, put at $5,000 by Dr. Nicolson. Counsel for the plaintiff contended she should have the full cost as she will have to make the decision as to whether to have the operation or not because of the position she has been placed in now by the 1st Defendant. She will always have a scar, in the donor area or otherwise. The damages should not be reduced on this account.

10. Counsel for the 1st Defendant says whe plaintiff can't have an award for cosmetic injuries that will always be there and the cost of an operation to remedy them. The plaintiff should only have the $5,000 if the operation is one which will have a reasonable chance of remedying the defect and then the award for cosmetic damages should be reduced accordingly. Counsel drew my attention to the dictum of Briggs, J. (as he then was) in Chow Siu-yin v. Sin Kuen 1966 H.K.L.R. at p.437.

11. As to an award for pain and suffering and generally, several authorities were cited to me including Chow's case. For various reasons, none were particularly helpful as either the injuries were different or there were additional injuries to confuse the issue. Sparks and Another v. Pardex Plant Engineers Ltd., Solicitors Journal, Vol. 113, 1969 at p. 1003, appeared on all fours. There was an award of $1,000 which in 1969 would be between $14,000 and $15,000. However, the report is so sketchy that it is of little practical assistance.

12. I am quite satisfied that the award for general damages should include the cost of the operation. If the Plaintiff has the operation, I must assume that it will be reasonably successful and that the plaintiff will be left with a noticeable but healthy graft on her leg and another scar at the donor area. If the plaintiff decides she will not have the operation then she will not only always have the existing scar as described by Dr. Nicolson but will have to exercise some extra care to avoid the scar being traumatised and ulcerating. The money not used for the operation would serve as compensation for this. Furthermore, there is no doubt that medical costs will rise and it would not be unrealistic to allow for a 50 percent increase in the cost of the operation.

13. Cosmetically, I do not think that the damage is too serious. Even when the plaintiff becomes a teenager and aware of her physical appearance, I cannot imagine that the scar will detract from that appearance or be in any way off-putting, nor do I think that the plaintiff will be unduly worried.

14. I have come to the conclusion that the proper award for general damages is $12,000.

15. As to special damages, no evidence has been adduced. Dr. Nicolson's outstanding fee is in the nature of a disbursement on the plaintiff's bill of costs. I therefore make no award.

16. Liberty to the parties to apply on the question of costs.

17. I will also hear counsel on the disposal of the damages.

18. Dated this the 11th day of August 1975.

Representation:

Mr. Mayne instructed by Messrs. Fairbaim, kwok & Wang for the Plaintiff.

Mr. Bunting instructed by Messrs. Yung, Yu, Yuen & Co. for the 1st Defendant.