LEE LAP MAN v. FUNG KING FAI

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ASSESSMENT OF DAMAGES

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1. On 10th August 1987 the male plaintiff, then aged 17, was a rear seat passenger in a motor vehicle driven by the defendant who lost control when attempting to turn left into Tai Mong Tsai Car Park. The defendant tried to avoid hitting a sign, swerved left, and rammed the vehicle into a hillside.

2. The plaintiff suffered abrasions to his face, bruises around his left eye, with a 1.5 cm laceration of his left upper eye-lid, and three small pieces of broken glass entered his left eye.

3. He was admitted to the United Christian Hospital on the same day where the three pieces of glass were removed. The left eve demonstrated no Perception of light. After skull x-rays, he was admitted to the Queen Elizabeth Hospital on the same day.

4. In the Surgical Unit of the Queen Elizabeth Hospital surgical toilet and suturing of the forehead laceration was performed and an opthalmologist was consulted about his left eye condition. He was transferred to the Opthalmological Unit the following day. A CAT scan revealed a fracture of the orbital region, fracture of the lesser wing of the sphemoid and a fracture of the medial wall of the orbit with entrapment of the medial rectus. He was discharged on the 14th August 1987, with follow up at the Yaumatei Opthalmic Clinic.

5. Interlocutory judgment was entered by consent on the 19th May 1989, with damages to be assessed. At the hearing of the assessment the Statement of Claim was amended by consent. The medical evidence and an employer's letter as to wages were Produced pursuant to a notice under Section 47 of the Evidence Ordinance and 0.38 R.S.C.

6. The amended special damges of $9,160 were agreed at the commencement of the hearing, as were the general damages of $150,000 for pain suffering and loss of amenities. Future loss of earnings and future medical treatment remain to be assessed. The plaintiff called two witnesses, and gave evidence himself.

7. The plaintiff is now 19 years old, having been born on 23rd June 1970, and he confirmed the occurrence of the accident and his eye injury.

8. He then detailed his work experience. He started work at the Michel Rene Hair Salon one week before the accident, on the 3rd August. Since the accident he has continued in that employment until the present time.

9. He attained Form V education. After leaving school, he worked as a sales representative in sports shoes and appliances for 2 months at $2,000 per month. He did not like the job. Before the accident his basic salary at Michel Rene as an apprentice hairdresser was $900 per month exclusive of tips. An apprentice hairdresser shampoos hair and assists in dyeing and waving hair.

10. He resumed work as an apprentice at; the Salon on 10th September 1987. He was promoted to assistant hairdresser in early 1989. Prior to promotion, he had earned $3,000 odd for 18 months. On promotion, he received a $300 increase, in his basic salary. His current basic salary is $1,800 per month. On average he now earns $3,500 per month including tips. In some months he can earn nearly $4,000, and at the New Year he could exceed that figure slightly. The other assistant hairdresser at the Salon earns less than $500 more than him.

11. He works more slowly compared to other employees with the same length of training. An assistant hairdresser is not allowed to cut hair, but can dye hair. The plaintiff has difficulty with this and on one occasion he left part of a customer's hair undyed. The salon caters for both male and female customers.

12. In cross-examination he said that he had no difficulty in distinguishing colour. He is generally careful when handling customers, and his employer is satisfied with him since he continues to employ him. As far as he is aware, there have been no complaints against him.

13. He agreed that the amount earned depended on many factors, including a hairdresser's working attitude, the volume of business, and the size of his regular personal clientele_. He confirmed that his loss of sight is not noticeable. He is not attending any courses or pursuing any personal study or reading, in the subject. He wants to be a hairdresser and continues in the occupation because he thinks there is a reasonable likelihood of attaining that goal.

14. Dr. W.J. Heffernan confirmed three letters and two reports written by him between 13th September 1988 and 25th September 1989.

15. He noted the penultimate paragraph of his letter datd 19th January 1989 as follows:-

"The loss of sight in one eye will not affect the other eye. It is possible that after several years the left eye may become divergent (deviate outwards) causing a cosmetically unattractive appearance. Such a development could be corrected surgically. At the present time the cost of such an operation (to include Surgeon fees, Anaesthetist fees and hospital expenses in a First Class facility) would approximate HK$25,000.00. No other complication is anticipated."

16. The likelihood of divergence is 70-80% for this plaintiff; the operation is purely cosmetic. After the operation the whole cycle of divergence could recur. He explained divergence, and I quote his evidence:

"Our eyes are straight because we see what we call form vision - the chair, the clock, the figure on the wall - with one little tiny point directly at the back of the eye. In order to focus on that point accurately with each eye, the eye muscles constantly work to keep the eye straight. When vision is lost in an eye the stimulus to focus on the point has disappeared. With time the eye tends to veer off towards what we call the resting position. During sleep everybody's eyes diverge a little because that is the resting position. When vision is completely lost, the stimulus to keep the eve straight has been removed."

17. The operation strengthens the muscle. To minimise the possibility of recurrence the surgeon will sometimes deliberately set the eye inwards; this is considered cosmetically attractive.

18. Dr. Heffernan said he imagined that a top-class hairdresser would be required to perform his duties swiftly; the loss of three dimensional vision and with it the capacity to swiftly and accurately judge distance and depth, would slow the plaintiff down. The plaintiff could nevertheless pursue a career as a hairdresser. In cross examination Dr. Heffernan said that the operation to rectify the divergence takes about 45 minutes at a cost globally of $12,000-$15,000 in a third class facility.

19. The adjustment to the loss of three dimensional vision and the field of vision varies between individuals depending on their particular talents. A computer operator with one eye might suffer eye fatigue but would not be likely to cause harm to the computer monitor, whereas a hairdresser with such a disability and using scissors could cause injury.

20. Dr. Heffernan said that the plaintiff would never become a first class hairdresser, and will never be as good a hairdresser as the average hairdresser with both eyes.

21. The third witness, Mr. TAI Kan-hung, is a partner in the Michel Rene Salon. He is 26 years old with ten years experience in the trade, and was a founding partner of Michel Rene when it commenced business on 9th January 1984. He employs two hairdressers, three apprentices and a manicurist. He confirmed that the plaintiff was first employed by the Salon in August 1987. At present hairdressers earn $6,000-$7,000 per month including tips. A skilful and experienced stylist could earn more than $10,000 per month, but be would have to be good, both fast and careful. The plaintiff would never attain such a degree of skill because he will be slower in cutting hair and he will "lose the dimension vision of the hair". The plaintiff also complained of his eye feeling tired after working for a long time and his work is "not that perfect". Because of the angle, a short style done by the plaintiff is not as smooth as one done by another hairdresser. He takes longer to do a particular job compared to other staff at the Salon. When dyeing hair the plaintiff "would easily leave one or two silver hairs undyed".

22. The plaintiff's training will take another 3 or 4 years. His maximum potential salary at present is $3,000 plus.

23. In his opinion had the plaintiff not lost the sight of one eye he would have attained $8,000-$9,000 per month, with only a very slight chance of earning $10,000 per month.

24. In cross-examination PW3 said that it normally takes about a year to become an assistant hairdresser and over one year to be promoted to hairdresser. The plaintiff had taken 2 years to become an assistant hairdresser. From the beginning of 1989 the plaintiff had maintained an average monthly income of $4,000, while a fully sighted person would expect to earn slightly over $5,000 per month. The two hairdressers in his salon presently earn about $5,000-$6,000 per month.

25. PW3 had told the plaintiff that he would never become a first-class hairdresser but he could be "an ordinary one, a reasonable one". The plaintiff has just started to set hair and was very slow. He has not yet started to learn cutting. PW3 is of the opinion that the plaintiff "would encounter great difficulty in cutting hair".

26. PW3 had never advised the plaintiff to chancre his occupation, and he thinks the plaintiff feels "more comfortable" as a hairdresser and can earn better money in that occupation. The plaintiff is not as enthusiastic about his job as he was before the accident. Speed was not the only factor in a hairdresser's success; a hairdresser had to be careful and cautious, have a good customer relationship and, most importantly, produce hair styles which please his customers.

27. The plaintiff's disability is not obvious and customers are unaware of it.

Future Medical Expenses

28. Dr. Heffernan assessed the divergence as a 70-80% likelihood. He also noted that divergence occurs slowly over a period of years and the likelihood is therefore greater in the case of young plaintiff, with the possibility of recurrence. The defence disputed this claim, arguing that such divergence and surgery remain only a possibility. I accept Dr. Heffernan's evidence on this point and I am satisfied that, the plaintiff will require such corrective surgery at least once in the future. Accordingly I make an award of $15,000 under this head.

Future Loss of Earnings

29. PW3, the plaintiff's employer, was the main witness on this subject. He is 26 with ten years experience as a hairdresser and is a partner in his own salon. He expressed his opinions in a restrained and careful manner. He said that a top-flight hairdresser could expect to earn $10,000 and more per month. Had the plaintiff retained his full sight, he would not necessarily have achieved that level of success. He said that in three years or thereabouts he could have expected to earn $8,000-$9,000 per month, and that currently he would have been earning in the range of $5,000-$6,000 per month.

30. With the eye loss, the plaintiff will not be able to earn at his current level any more than he earns now. When he completes his training in three to four years he will never be more than an ordinary hairdresser.

31. Plaintiff's counsel invited the Court to assess future loss of earnings on the projected figure of $8,000-$9,000 per month. He suggested that the Court use the median $8,500 and that the figure of slightly less than $4,000 per month be used as the actual earnings of the plaintiff, resulting in a difference of $4,600-$4,700 per month shortfall to be awarded to the plaintiff.

32. As to the multiplier, counsel suggested that 17 be adopted as from the date of assessment.

33. Counsel then submitted that for the period from the date of assessment until 1992, when it is projected that the plaintiff will complete his training, the Court should adopt a shortfall of $1,300 per month, which would result in an award of $46,800.

34. The balance of the multiplier, that is 14 years, be used to calculate the future loss, $4,700 x 12 x l4 = $789,600.

35. Counsel noted that this was a substantial continuing loss, but there was no evidence to suggest that a change of occupation would mitigate that loss. The evidence had not been contradicted and the plaintiff was entitled to such an award.

36. Defence Counsel argued that the award should be a lump sum under the head of loss of future earning capacity, bearing in mind the speculative nature of the evidence, and he referred the Court to YIP Kam-hung v. LEUNG Sam-nga (1986 No. A7337); PANG Kwa-wah v. TSANG Kwong-wing (1987 NO. A5582) and TSANG Kee-chuen v. Hong Kong & Yaumatei Ferry Co. Ltd. (1988 No. A303).

37. I am of the opinion that there is authority for an award to this plaintiff under both heads of damage, as in TSANG Kee-chuen v. Hong Kong & Yaumatei Ferry Co.. I note that the plaintiff ran his claim on the basis of a future loss of earnings claim, no doubt because this would result in a more substantial award.

38. I accent that a claim for future loss of earnings can be made. In any claim, particularly one involving a young plaintiff, there is necessarily some element of speculation, but this does not prevent the claim being adjudicated upon.

39. I accept that 17 is the appropriate multiplier. Turning to the evidence as to earnings, the three witnesses speak of the reduced speed of the plaintiff, and of the problems due to the loss of three dimensional vision. I accept Dr. Heffernan's evidence on this, as I accept the evidence of the plaintiff and his employer.

40. The plaintiff in chief said he earned $3,500 including tips, in cross-examination he agreed with defence counsel that in some months he earned nearly $4,000 per month, and during the New Year sometimes slightly in excess of that figure. His contemporaries earn less that $500 per month more than him. In chief, his employer said that the plaintiff's maximum potential as an assistant hairdresser is $3,000 plus "for the present moment". In cross-examination he agreed that from the beginning of 1989 the plaintiff had maintained a monthly income of $4,000, and that someone of the plaintiff's seniority should be earning slightly over $5,000 per month. He agreed that the difference between the plaintiff's salary and that of the other assistant hairdressers was less than $500 per month.

41. Taking into account the evidence and the unsubstantiated figure for tips, I accept Counsel's submission that the monthly loss for the plaintiff from now to the end of this training is $1,300.

42. The employer said that it would take the plaintiff another 3-4 years to complete his training. I accept that the span of 3 years should be used to calculate this loss, as follows:

$1,300 x 36 months = $46,800

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43. I do not accept the multiplicand of $4,700 as submitted by Counsel for the balance of the future loss. PW3's evidence is that the plaintiff can become a reasonable, ordinary hairdresser at the end of his training, although slower than a fully sighted hairdresser. A fully sighted reasonable, ordinary hairdresser could expect to earn $8,000-$9,000 per month.

44. The plaintiff's current loss is approximately 26% less than his contemporaries, and there is nothing in the evidence to suggest that this will vary in the future. Applying the 26% differential to the median of $8,500 results in a monthly loss of $2,210. In my opinion, this is the correct multiplicand.

45. Thus, the future loss of earnings is as follows:

46. $2,210 x 12 x 14 = $371,280

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Loss of Earning Capacity

47. In the assessment in PANG Kwai-wah there is a full consideration of this head of damage and an award was made in that case. The plaintiff was a computer technician who had lost his right eye. There is no evidence in the case before me that this plaintiff is likely to lose his employment or will be disadvantaged in the labour market. His appearance is normal and he can cope with his job, albeit at a slower and more careful pace. Rearing in mind the principle set out in Moeliker v. A. Reyrolle & Co. Ltd. (1977) 1 W.L.R. 132, I am of the view that no award under this head should be made.

48. I note that the plaintiff is an infant and the general damages of $150,000 have been agreed. I accept this as a reasonable settlement.

49. I summarise the award:-

50. There will be interest on the agreed special damages at the rate of 4% per annum from the date of accident to the date of this assessment and on general damages at the rate of 2% from the date of the writ to the date of the assessment. There will be no interest on the awards for future loss of earnings or for future medical expenses.

51. The defendant shall pay the plaintiff's costs of this assessment which shall be taxed on a party and party basis if not agreed.