Lau Ming Wah v. Yau Ka Fai and Anothers

HCA006171/1986

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BETWEEN

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Coram: Master Jones in Court

Date of Hearing: 25 August and 2 October 1989

Date of Judgment: 2 October 1989

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ASSESSMENT OF DAMAGES

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1. The plaintiff sues for damages suffered when the car in which she was a passenger was in collision with that driven by the 1st defendant. The accident occurred on 10th September 1982.

2. Interlocutory judgment was entered against 1st defendant on 18th July 1987. Notice of discontinuance was subsequently filed against 2nd defendant, and the third party proceedings fell away in consequence. The defendant was unrepresented at the hearing. His rights were explained, but he declined to cross-examine or to give evidence.

3. Hearsay notices were served in respect of medical reports, photographs, and various letters and documents concerning the plaintiff's employment since the accident. These have been admitted as exhibits P1 to P16 in the sequence adopted in the plaintiff's bundle of documents. Oral evidence was given by the plaintiff herself and by the office manager of her employer at the time of the accident.

4. The re-amended statement of claim sets out the particulars of the plaintiff's injuries; these are

(i) Multiple laceration wounds over the right side of her face and eyelid.

(ii) Partial damage to right facial nerve due to contusion.

(iii) Berlin's oedema of right macula and irregular astigmatism of the right eye due to corneal oedema.

(iv) Remaining cicatrical octropion causing irritation to the right eye.

(v) Shock.

5. After the accident, the plaintiff spent eight days in Queen Elizabeth Hospital, followed by three days in the Plastic and Reconstructive Surgery Unit of Princess Margaret Hospital. She was discharged from the latter on 21st September 1982, whereafter she attended as an out-patient at Queen Elizabeth Hospital on six occasions up to November 1984. Further surgery was performed in February 1986 for cosmetic reasons.

6. The initial report of Dr. Gordon Ma of Princess Margaret Hospital in January 1983 discloses multiple right facial lacerations and paralysis of the right facial nerve. The facial muscles are said to have recovered after physiotherapy. The facial scarring is a significant factor and is discussed in Dr. Ma's later report of 14th May 1988, together with the more recent treatment. The doctor writes:-

"Miss Lau sustained facial injury in a traffic accident on 10th September 1982. She was initially treated in the Surgical Unit of Queen Elizabeth Hospital and was subsequently followed up in the Plastic Surgery Unit, Princess Margaret Hospital. She was seen in this clinic on 13th January 1986. On examination, the followings were noted:-

(1) A curved hypertrophic scar measuring 7cm extending from her right cheek to the temple hairline.

(2) A similar curved hypertrophic scar measuring 8cm in the lower part of her right cheek extending to the pre-auricular region of her right ear.

(3) A 6cm pigmented hypertrophic scar in the left jaw.

(4) Scattered scars were noted in the right upper eyelid, chin and the neck region.

On 1st February 1986, scar revision and multiple Z plasties were carried out to correct the hypertrophic scars in her right cheek and left jaw region.

Post-operatively, there was some degree of scar hypertrophy noted and repeated intralesional kenacort injection was given. She was also given pressure therapy to the scars in the form of face mask to be worn at home.

When examined on 9th May 1988, the scars in her right cheek and left jaw region were still obvious although they were improved. These were probably permanent and only minimal improvement could be anticipated in the future."

7. It is noteworthy that the scarring persists at the examination by Dr. Ma in May 1998, and that his prognosis is for minimal improvement. Of particular significance is the unfortunately common occurrence of the hypertrophic (or keloidal) factor in the scarring.

8. Dr. Ian Nicolson examined the cosmetic factor in detail in his report of 13th March 1987. He noted the early onset of keloidism, treated by plastic surgery, cortisone injections and by a facial compression garment worn at night. The plaintiff was at that stage continuing to attend a plastic surgeon for monthly review and treatment of the scars. Dr. Nicolson concluded that cosmetic disability was permanent and suggested that the scars would improve slowly over the years, but would remain conspicuous. He recommended continued treatment to prevent further keloid developing, but discounted any further benefit from cosmetic surgery. Sensibly, none of the doctors has attempted to quantify in wholeman percentage terms the degree of cosmetic impairment.

9. In his report of 21st April 1987, Dr. William Heffernan confirmed Dr. Ma's diagnosis of multiple lacerations to the right face and paralysis of the right facial nerve. He found residual double vision at extremes of up-gaze, and poor eyelid apposition on attempted closure. The former he ascribed to nerve damage affecting eye movements and the latter to damage to the eyelid itself. The double vision is apparently of minor significance, but the eyelid problem causes pain and watering on waking from sleep; it is consequently necessary to apply a protective cream at night.

10. The plaintiff's evidence concentrated on her employment situation since the accident and in particular the diminution in prospects caused by her altered appearance. At the time of the accident she was employed by R.I. Overseas Ltd. In the garment expert business, being involved in sales and public relations. She was known as a merchandiser and had worked for the company for 3 years. She enjoyed her job very much, and her boss had promised to make her sales manager of the factory. She stressed the importance of her appearance in view of the need to meet customers. I accept this evidence.

11. After the accident and paid sick leave lasting some months, she returned to the same job. She became less involved with customers, due she said to the adverse impression afforded by her appearance and because customers would question her about the accident. This would displease her employer as it distracted customers from business concerns and sometimes caused other colleagues to be involved. The plaintiff was conscious of her appearance and lacked confidence, particularly because of the damaged eyelid and distortion to the mouth caused by the damaged facial nerve.

12. She left R.I. Overseas Ltd. in November 1984 as she felt she no longer had the promotion prospects which had Previously been suggested. Clearly emerging from her evidence is the influence of her appearance on her performance, both objectively, and subjectively insofar as her confidence was damaged.'

13. The plaintiff had several jobs in the ensuing years, all in the garment trade. The first, with a company called Tuna Fong, lasted until January 1986. She appears to have resigned from that as it was a traditional company and could not accept the innovations she recommended.

14. In this instance there is no direct indication that her appearance and diminished confidence had a place in the plaintiff's departure. However, in the following two jobs these were apparently the most significant factors.

15. She worked for Trueway Ltd. for about 6 months from June 1986 when she was dismissed by a new personnel manager. She testified to the express reasons for dismissal being both her ability and her appearance, however she believed her appearance to be the principal factor.

16. After this, the plaintiff's confidence appears to have suffered and she began to wonder if her appearance was in fact adversely affecting her ability. She was out of work for 6 months and did not get another job until May 1987, with a company trading as Hong Kong Wearhouse.

17. She testified to the disastrous temination of this employment when her appearance was adduced in offensive terms to illustrate her inadequacy in promoting the export trade. This was at the instance of a successor to the person originally employing her, who dismissed her with explicit mention of her ugliness and consequent unsuitability.

18. The plaintiff then set up her own business in the garment trade, understandably reluctant to risk further damage to her confidence in salaried employment. She was given financial support by her family, but has suffered a trading loss ever since the business started in September 1987.

19. The plaintiff is married with two young children, but separated from her husband. She said the accident had greatly affected her marriage and that her husband had married her after the accident only because of pressure from his family. They had apparently known each other a long time before they married. She mentioned his lack of support and his unwillingness to be with her in company due to her appearance. She blames her husband's attitude for the state of her marriage and says that there is no indication of her husband returning to her. She does however hope that he will do so for the sake of the children.

20. The other witness was Mrs. Fatima Lawton, office manager at R.I. Overseas Ltd. both now and at the time of the accident. The witness had no personal knowledge of the plaintiff's performance in her job and said that her superiors at the time of the accident had all left Hong Kong. She said there would have been promotional chances for a merchandiser after 2 or 3 years in the position, which would mean an increase of about 30% in salary. The witness also substantiated the importance of appearance and self-confidence in a business she described as highly competitive with considerable pressure.

21. In evaluating pain, suffering and loss of amenities, I accept the plaintiff's evidence. She was calm and undramatic; totally without any self-righteousness or hysteria which may have led to a suspicion of exaggeration. Important aspects of her testimony were supported by the psychiatric report of Dr. William Green, to which I shall refer in some detail.

22. Photographs produced in evidence show comprehensive facial scarring, likely over the years to have caused considerable distress to a woman only 26 at the accident. Excluded however is the scar on the lower left of the jawline which was already there. The facial pressure garment was worn at night for about a year and must have caused discomfort and anguish, particularly in the marital context. In this regard the plaintiff testified that her family gave her support, but not her husband.

23. The plaintiff's mental and psychiatric condition is considered in a report of 18th April 1988 from Dr. William Green, a consultant psychiatrist. This report confirms the plaintiff's evidence of anxiety and loss of self-confidence, together with diminished enjoyment and prospects in both the domestic and professional contexts.

24. Dr. Green speaks of the effect of the accident on the plaintiff being "devastating", and instances her "physiological, intellectual and emotional deterioration". He describes her prospects within her own culture as having been "virtually amputated" and speaks of her rejection by important figures in her culture and personal life. He instances her lack of job satisfaction and her social isolation due to her husband's embarrassment at her facial scarring.

25. The following extract from the report summarises Dr. Green's analysis and his not unduly optimistic assessment of the future:

"Currently Mrs. Lau is preoccupied by her inability to obtain employment commensurate with her experience and skill. She has insomnia every night with fragmented sleety and frequent nightmares. Concentration is considerably reduced, her memory is poor, her self-esteem is extremely low and she has become indecisive being unable to cope with simple tasks which previously she did not even recognise as difficult eg. simple housekeeping decisions. Interest in food has reduced for Mrs. Lau and in the period after her accident she lost about twenty pounds in weight although this has been imperceptibly restored over the past year or so. In terms of her mood Mrs. Lau is permanently sad and is unable to recall when she actually enjoyed even a simple incident. Despite the fact that her libido remains within normal limits, her husband will have little to do with her and openly states that because she is so disfigured he regrets having married her.

OPINION The impact of Mrs. Lau's accident on her life has been devastating. Her employment in her chosen line of work has virtually ceased and her prospects within her culture have been virtually amputated. Domestically there has been an equally devastating result and her ability to cope with her life is considerably reduced by the development of a severe Depression. This is characterised by the physiological, intellectual and emotional deterioration described earlier in this report and can be expected to persist for many years. Socially Mrs. Lau is reduced to virtual isolation and in real terms, no matter what moralising one may be tempted to impose, she is rejected by important figures in her culture and in her immediate personal life.

Despite the stress imposed on Mrs. Lau she still persists in her attempts to cope  which underlines the fundamental strength of her basic personality and therefore the seriousness of her injuries at a psychological level. In addition to any future surgical or medical help for her scars, Mrs. Lau needs psychiatric support and in my view this will take at least two years of intensive psychotherapy, will be expensive and ultimately may not be successful particularly if she is unable to obtain suitable employment or her husband does not modify his rejection."

26. Dr. Green's report ideally requires updating, however I imagine the cost factor has militated against this as there is uncertainty that an award will be met. Nonetheless the psychiatric picture painted is one of severe and continuing loss of amenities. The plaintiff's own evidence is confirmed and underlined with perception and realism. Apparently the plaintiff is fighting to adjust, but Dr. Green stresses that this very strength only emphasises the depth of her psychological affliction.

27. Unsurprisingly I am unable to find a useful precedent. Personal injuries actions usually focus on the gravity of the observable injuries, and psychological damage with its concomitant suffering is less easily quantified.

28. Several cases in recent years have considered the cosmetic factor as a separate and additional sub-head of damage within pain, suffering and loss of amenities. Implicit in such awards is an element of compensation for the victim's own perception of his diminished appearance and prospects.

29. This compensation for cosmetic disability has been either separate from the main award, or has been weighed in the balance to upgrade the main award. Examples of the former are Li Chim ying, H.C.A. 3527 of 1984, and Li Soo Yee, H.C.A. 11720 of 1982. Awards were made for cosmetic impairment in the respective sums of $80,000 and $100,000, in addition to the main awards of $130,000 and $160,000.

30. The alternative approach is to consider cosmetic impairment as an aggravating factor in assessing the overall damages. This was applied recently in Wong Siu Kwan, H.C.A. 2946 of 1987 when the judge awarded $150.000 whilst expressly including a minor cosmetic disability in his calculations.

31. Each approach has its merits, depending on the demands of the particular situation. This case however comprehends an interrelation of cosmetic and psychological impairment, together with the physical pain, anguish and disruption stemming from the accident. In these circumstances an overall approach to quantum is to be preferred.

32. The distinction between normal "healthy" anxiety and actual psychological damage may seem to be one of degree only. The former however readily attracts the judicial inference that it necessarily follows a bad injury, particularly with cosmetic impairment. The latter by contrast stands on its own and must be proved, precisely as a broken leg should be proved. Once however the psychological damage is proved through medical expertise, its call for compensation is scarely less compelling than that of the broken leg. It follows that psychological damage should be expressly pleaded, and this appears in the re-amended statement of claim.

33. The categories of accident analysed and evaluated in Lee Ting Lam, [1980] HKLR 657 rely for their definition on physical injury. The indefinable nature and extent of psychological damage precludes its inclusion. To categorise and value the varieties of such damage would be to venture outside the judicial function. It would be presumptuous to attempt and impossible to apply.

34. Accepting the plaintiff's evidence and the various medical reports, including that of Dr. Green, I am left with only tenuous guidelines. The Plaintiff's physical disability is linguistically within the definition of "serious injury" in Lee Tina Lam; equally it is not within the "substantial injury" category, which emphasises amputation and diminished mobility.

35. Physical injury however contributes only a part of the plaintiff's suffering. Moreover, it was emphasised in Lau Che Ping, civil appeal 12 of 1988, that the Guidelines in Lee Ting Lam are not a straight jacket. Indeed they cannot be, when the nature of the plaintiff's injuries, other than purely physical, are not even comprehended by the categories in Lee Ting Lam.

36. In evaluating this head of damage, I am concerned that the award should adequately reflect the plaintiff's psychological and cosmetic impairment. The absence of guidelines, the paucity of authority, and the difficulty of comparison, all lead me to distinguish this case from Lee Ting Lam, with its emphasis on physical criteria.

37. I am satisfied that the plaintiff's scars constitute a permanent and unsightly disfigurement. I am equally satisfied on her own evidence and on the report of Dr. Green that these scars have had a tragic effect on her personality, and on her domestic and social life. I do not know if the psychological damage will be permanent, but it has lasted 6 years and Dr. Green's prognosis in 1988 was less than optimistic.

38. I therefore assess these factors together with the more usual aspects of pain and suffering which emerge from the evidence. Conscious of the relatively uncharted area which this assessment covers, I award the plaintiff $350,000 for pain, suffering and loss of amenities. In reaching this figure I have not entirely abandoned precedent and adduce in support the awards in Li Chim Ying and Li Soo Yee. In those cases, purely physical suffering was greater and cosmetic impairment was comparable, however psychcological damage was not a factor. The total awards in 1983 and 1986 respectively were $230,000 and $260,000 for pain, suffering and loss of amenities, including the separate award for cosmetic impairment.

39. I turn to the earnings related aspect of the plaintiff's claim. The only quantified amount is for $78,000, representing the 6 months she was out of work from November 1986 to May 1987 at the rate of $13,000 per month. I cannot find on the evidence that the plaintiff's failure to be employed in that period was directly attributable to the accident. She had left two jobs voluntarily, and only from the third was she dismissed for reasons connected with her appearance. It was this last episode which on her evidence accelerated the loss of self-confidence and gave rise to the unemployment.

40. Although the unemployment may be psychologically connected to the plaintiff's injured self-confidence, its direct cause was a series of voluntary choices exercised by the plaintiff. If we then say that the choices were not truly voluntary, but were under the impulsion of a psychiatric disorder, any compensation would dangerously overlap the general damages award; apart from which, the evidence cannot be so interpreted. Moreover, I am about to consider the plaintiff's post-accident employment history in assessing a global award for loss of earning capacity. The period of unemployment and its roots in psychological damage will be a, factor here, and to award the special damages sought would again duplicate its significance.

41. For these reasons, and for its lack of direct causal connection with the accident, I disallow the claim for $78,000.

42. An award for loss of earning capacity seeks to reflect a plaintiff's diminished value in the labour market. It represents a calculation of the value of a future risk on the basis of a plaintiff's present condition, as caused by the accident and as compared to the pre-accident condition. Factors to be considered include the length of prospective working life, the security of the existing employment, and the relevance of the injury to the ability to pursue the chosen calling.

43. The courts have not hesitated to make awards in this category, apparently concluding that almost any injury other than trivial imports a diminution of employability. Awards have ranged from $15,000 to well over $100,000 and have frequently been accompanied by a sum representing a mathematically calculated loss of future earnings.

44. The rationale of these dual awards is explained in Lau Che Ping. Put simply, a loss of future earnings is usually based on the supposition that a plaintiff will earn remuneration diminished as a result of the injury; the award seeks to cover the difference. If however the postulated inferior employment were itself to be lost, a plaintiff would also lose even the diminished amount the injury has left him able to earn. It is here that his value in the labour market, also diminished by the accident, may call for an additional award for loss of earning capacity. This award will reflect the risk that the injured person will have greater difficulty than an able-bodied man in finding replacement employment.

45. Frequently the uncertainties of a plaintiff's situation render it impossible to make a mathematically based assessment of loss of future earnings. This is the position here, and in such a case the global award should comprehend the twin factors of loss of future earnings and loss of earning capacity. The distinction between these factors when the former is unascertainable mathematically is anyway artificial. This is the more so in the instant case as the plaintiff's actual earnings, despite her efforts, are nil.

46. An example of a global award which covers both factors is afforded by Gluyas v. Law and Yip (HCA 2928 of 1982), a decision of Kempster J. The award of $30,000 in 1983 comprehended a small factor of possible loss of future earnings, a diminishing factor of domestic help, and a speculative factor of reduced earning capacity. The principle emerging is that a plaintiff should be compensated for perceptible risk of future loss which may arise from his diminished situation, even if it may never happen. The risk itself may not amount to a probability, but the loss should be probable if the situation at risk were to eventuate.

47. Whilst I am unable to find the special damages claimed sufficiently causally connected to the accident, I conclude without hesitation that the plaintiff will suffer considerable future loss. The psychiatric impairment will cause reduced earnings for an uncertain period in the future, and her earning capacity is also drastically reduced should she have to seek alternative employment. She is still a youngish woman and her earning capacity, but for the accident, would have been fairly high. Her employer at the time of the accident assesses the potential earnings in 1989 of a merchandiser with the experience the plaintiff would by then have had at $15,000 to $20,000 per month.

48. I accept this figure as a basis for assessment, as the plaintiff's evident competence and enjoyment of her job make probable her successful continuance in that or comparable employment.

49. There are two factors relevant to her diminished earning capacity; her cosmetic impairment from the objective or observable viewpoint, and the subjective effect of that impairment on her Psyche. The former I accept from the medical evidence to be permanent; the latter only possibly capable of resolution in the medium term. I rely on Dr. Green at his final paragraph for this conclusion.

50. The effect of the facial scarring on potential employers and customers in the plaintiff's chosen field is well documented in the evidence. As the scars will not improve, so this will be a permanent factor in her life. It may well intrude into her present private business venture, reducing the prospects of success which her efforts may otherwise have earned. The present financial situation of this venture warrants scant optimism for the future.

51. The psychological factor is extremely difficult to evaluate. Dr. Green's prognosis suggests the firm possibility that damage may be permanent. I can only conclude that there is a risk which I assess as considerable that the plaintiff may be psychologically scarred for the long term or even permanently. This carries heavy implications for her future earning capacity.

52. Considering all these factors in the context of her present employment, I find it probable that the plaintiff will earn nothing for at least a year. Thereafter there is a substantial risk that she will earn a permanently and considerably diminished amount. Moreover in her scarring she has a disadvantage in the labour market which will be permanent, coupled with a grave psychological disadvantage probably in the medium term at least. I find that a high global award is necessary to compensate her for the combination of loss of future earnings and loss of earning capacity. I accordingly award the sum of $500,000 under this head.

53. I turn to the claim for special damages which, excluding the disallowed portion of $78,000 in lost earnings, amounts to $38,448. These damages were the cause of the hearing being re-opened with the court's leave as they had been overlooked in examination of the plaintiff. The claim covers hospital charges, travelling expenses, loss of personal effects, tonic food, and private surgery and medical treatment.

54. I am satisfied that the amount claimed has been disbursed and that the individual items of expenditure were properly incurred as a result of the accident. The sum of $38,448 is duly awarded.

55. The total award is therefore:

General Damages

Special Damages

56. There will be interest on the general damages for pain, suffering and loss of amenities at 2% per annum from the date of the accident to judgment. The special damages will carry interest at 5% from service of the writ. The earnings related award will not carry interest.

57. The plaintiff is awarded her costs with a certificate for counsel. Her own costs are to be taxed in accordance with the Legal Aid Regulation.

Representation:

Mr. N. Sarony, instructed by Director of Legal Aid for Plaintiff.

1st Defendant in person.