Ashley Middleton and Another v. Cheng King Ying and Another

HCA007211/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Assistant Registrar W.A. Wilson

Date of Judgment: 13 April 1982

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ASSESSMENT OF DAMAGES

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1. Mr Middleton was injured in a road accident on 5th July 1980.

2. He is left with a left sided tinnitus, or constant noise in the ear, and a left ear hearing loss of moderate severity. This has been measured at 45 dB in the speech frequency which I am told represents a 45% loss of hearing in the left ear. The right ear fortunately remains normal.

3. This interferes to a minor degree with Mr Middleton's work. He does not always hear at first when people speak to him, especially from the left side. It is slightly awkward to hold the telephone to his right ear with his left hand in order to leave his right hand free for writing.

4. His enjoyment of music is affected. It is a slight social embarrassment. It is a practical one too, in that he cannot always readily identify the source of a sound. Fortunately his hobby of diving is not affected.

5. Mr Middleton is a Staff Sergeant in the British Army. He is 32 and has served some 16 years. He will be a Warrant Officer next month. He is in the Pay Corps and for the time being his Army career is unaffected. However his hearing categorisation would have to be downgraded from "H1" to "H3". He will remain in category "FE" (Fit Everywhere) but certain avenues of his Army career, particularly those likely to involve active fighting situations, will be closed to him.

General Damages

6. After considering the authorities cited I award $50,000 for pain suffering and loss of amenities.

Loss of Future Earnings

7. Mr Middleton has a chance of getting a commission in the Army. If he does he may continue to age 55 in his career. If he does not he will have to retire at age 40.

8. He is still eligible for a commission with his hearing disability. There is a remote chance that the likelihood of his obtaining a commission will be affected by his disability. Evidence was led as to the actual disparity between retirement as a captain at 55 and retirement as a warrant officer at 40. However I am of the view that this is speculative as a future economic loss. I do not think it has been established that he probably would have obtained a commission in the first place; in the second place it has certainly not been established that he has lost that opportunity as a result of the accident.

9. It is not a situation where any future loss can be computed actuarially. Mr Middleton should be able to continue to work normally. However it is possible he may have to retire from his Army career in 8 years' time at the age of 40. It is remotely possible, but unlikely, that the enforced retirement would be a result of this accident.

10. In any event he would then be on the open job market with a slight disability, this hearing impediment. Dr Hughes thought that on an ordinary interview a prospective employer would be unlikely to detect the hearing disability. Certainly it would not affect Mr Middleton's ability to perform most ordinary jobs. However any occupation which happened to require first class hearing would not be open to Mr Middleton.

11. After considering the cases cited I award $30,000 for loss of future earning capacity.

12. Special damages were agreed except for the extra cost of hiring the amah. This appeared to me to be reasonable and I allow it.

13. In the result:-

14. There will be interest on the first item of general damages at 17½% from date of service of writ to today. Interest at half this rate on special damages from date of accident to today.

15. Costs of assessment to Plaintiff with certificate for counsel. Costs to be taxed if not agreed.

16. Copy of assessment to be sent forthwith to Solicitors for each party. Stay of execution for 14 days from today. Liberty to apply.