PANG KWAI WAH v. TSANG KWONG WING

1987 No.A5582

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

___________________________

ASSESSMENT OF DAMAGES

___________________________

1. The Plaintiff was 24 years of age when, on the 13th May 1986, the Defendant assaulted him in the street by punching him in the face breaking his spectacles. Unfortunately, fragments of the lens entered his right eye". The eye was so badly damaged that it had to he removed and a prosthesis fitted in its stead.

2. On the 4th July 1986 the Defendant was convicted, on his own plea, in the Kwun Tong Magistracy of unlawfully and maliciously wounding the Plaintiff. Upon conviction he was fined $1,000.00 and ordered to pay compensation of $5,000.00 to the Plaintiff.

3. Before proceeding further with this assessment I feel obliged to comment on the learned Magistrate's award of compensation. Under s.98 Magistrates Ordinance Cap.227 the sum of $5,000.00 is the maximum figure which a Magistrate may award by way of compensation. The present level of awards of damages is such that $5,000.00 can only be an appropriate award for very minor injuries. It may well be that the time has come for a substantial upward revision of a Magistrate's powers to award compensation but until that happens it seems to me that it is undesirable for Magistrates to order the payment of compensation in respect of any but the most minor of injuries. If Magistrates award compensation in serious cases, such as the present action, I consider that a Defendant may well have justifiable sense of grievance in that having been ordered to pay compensation by one tribunal, he is brought subsegently before a higher tribunal and asked to pay a great deal more. Hence, as the order for payment of compensation serves no useful purpose in an action such as this it should not be made.

4. The writ and statement of claim was issued on the 16th September 1987 and interlocutory judgment was entered by consent on the 26th October 1987.

5. With the exception of the replacement cost of the prostheses and future medical expenses, the Defendant's Solicitor agreed the special damages claimed by the Plaintiff, as amended at the commencement of the hearing. Thus, the only substantive matters at issue in this assessment are the Plaintiff's claim for general damages for pain, suffering and loss of amenities, future loss of earning capacity and the aforesaid cost of the prostheses and future medical expenses.

6. The medical evidence was produced pursuant to notices under Section 47. Evidence Ordinance and O.38 R.S.C.

7. The Plaintiff gave evidence on his, own behalf and, so far as it related to his injury, it was not challenged. He explained that he was admitted to hospital immediately, after the assault for a period of 10 days, during which, according to the medical reports, he was treated for a lacerated eyelid and ruptuted eyeball. Unfortunately, the severe trauma to his right eye gave rise to a sympathetic reaction in his left eye, which necessiated future-hospitalization for a further 4 days in July. This treatment appears to have been successful in so, far as his left eye was concerned, but his right eye continued to be painful and  phthisical.

8. In October 1986 he re-entered hospital, where his right eye was removed and in November 1986 a prosthesis was fitted.

9. The Plaintiff said that, subsequent to the last operation, he still has to make regular visits to his doctor for treatment to relieve the discomfort of the prosthesis and that his right eye socket weeps frequently each day.

10. From the Plaintiff' s evidence and the medical reports I have no hesitation in finding, that during the period. May - November 1986 he suffered a great deal of pain from his right eye, and to a lesser degree from his left and that subsequent thereto he has suffered no little discomfort from the right eye socket. Further, I find that, although with the effluxion of time the pain and discomfort from his right, eye socket has diminished, he will continue to suffer from a degree of discomfort for the forseeable future.

11. Fortunately, the prosthesis is sucks good match to his remaining eye that it is difficult to detect, even on close examination. Hence, from a cosmetic point of view the Plaintiff has been little affected by the injury, although, in assessing damages under this head I will have to take into account the fact that occasionally, when wiping the tears from that eye, the Plaintiff displaces the prosthesis to the extent that only the white of his "eye" is visible.

12. Whilst the cosmetic damage to the Plaintiff may be minimal one has to view it subjectively.

13. The Plaintiff said, and I believe him, that the injury has resulted in a loss of confidence socially. He put it this way - "I do not know if will accept me or treat me as a monster..... I think this will affect my marriage prospects ..... my appearance will make many people dislike me".

14. Somewhat sad comments from a very pleasant young man, who on the basis of his unchallenged evidence, had risen from humble beginning to his present post of a computer technician and had previously enjoyed an active social life.

15. If one loses the sight in one eye at an early age it is possible to adjust to a sufficient extent to enable one to enjoy ball games with a modicum of success, but, as was shown in the case of Milburn, the Cricketer and Ranks, the Goalkeeper, the loss of sight in one eye later in life can be far more disruptive. Whilst the Plaintiff did not claim to be of international calibre, he enjoyed playing badminton and tennis regularly, but now plays only infrequently because of the difficulty the has in hitting the ball or shuttlecock.

16. In summary therefore, the picture becomes quite clear. Prior to the assault the Plaintiff was a bright, active young man, who enjoyed life. Now, quite apart from the pain and discomfort he has suffered to date, and will continue to suffer in the future he is lacking in confidence, his sporting activities are severely curtailed and his social life is generally at a low ebb.

17. In assessing damages under this head, Counsel for the Plaintiff referred me to a number of authorities, the moat helpful of which was an assessment by Master O'Donnell in April 1987 in the case of Fong Pak-lam v. Chan Tai H.C.A. No.2279/84, in which Master O'Donnell awarded the sum of $130,000.00 to a man of a similar age to the Plaintiff, who had suffered the loss of sight in one eye.

18. In that case the Plaintiff did not have the eyeball removed and suffer the discomfort of a prosthesis, but, on the other hand, he was hospitalized for much longer and suffered greater cosmetic disfigurement. Hence, in the round the injuries and prognosis are broadly similar.

19. In awarding this sun, Master O'Donnell took account of inflation since the awards were made in earlier authorities to which he was referred.

20. I agree with Master O'Donnell's approach and, by hypothesis, reject the Defendant's solicitor's submission that I follow a 1985 award by Penlington J., as he then was, in Chan Fung v. Mak Hoi-ming & Ors. H.C.A. No.4880/81.

21. Since Master O'Donnell made his award, the Court of Appeal has had occasion to consider the general level of awards of damages for personal injury cases in Hong Kong -- Lau Che-ping v. Hoi Kong Ironwares Godown Co. Ltd. C.A.12/88. In that case Court of Appeal reviewed the history of awards since Lee Ting-lam v Leung Kam-mine [1980] H.K.L.R.657.

22. In delivering the judgment of the Court Cons V-P adjusted the guidelines set out in Lee Ting-lam very substantially upwards. Counsel for the Plaintiff submitted that I should take the new guidelines into account in assessing damages under this head and I agree with her. However, whilst the guidelines set out in Lau Che-ping represent a very considerable increase on those set out in Lee Ting-lam, the Courts have, as was anticipated in that case, increased awards as time passed. This is exactly what Master O’Donnell did in making his award.

23. Hence, although I propose to adopt Master O'Donnell's, award as a starting, point I do not propose to increase my award by anything like the increase calculated on a straight comparison between the guidelines set out in Lee Ting-lam and Lau Che-ping for only eighteen months have elapsed since Master O'Donnell's award. Hence, in the premises I award $150,000.00 under this head.

Future Loss of Earning Capacity

24. Happily the Plaintiff has not suffered any actual loss of earnings to date. This being so, the Defendant's Solicitor submitted that as only two years have elapsed since the injury it is too soon to say that the Plaintiff will suffer loss of earning capacity and that such future loss is too speculative to calculate.

25. The correct approach in assessing damages under this head, is for the Court to examine the evidence before it to see whether it establishes whether there is "a risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market", see Moeliker v. A. Reyrolle & Co. Ltd. [1977] 1 W.L.R.132."

26. Of course, these must be an element of speculation in any award under this head, but, in my judgment, in the present action it is not such is prevents me from making a reasoned assessment. On the contrary, I consider that there is abundant evidence to show that the Plaintiff will be so disadvantaged.

27. The Plaintiff is a computer technician. This, inter alia, involves soldering work inside intricate machinery in a confined space. He has already encountered difficulty id carrying out this work on a number of occasions with the result that he has caused short circuits in computers he has been working on. This is as a direct result of the loss of depth perception caused by his monocular vision. In addition thereto, as indicated earlier, he is suffering from a loss of confidence, with the net result that he has to ask for help from his colleagues more frequently and even has to pass over some work to his colleagues in its entirety.

28. Unfortunately, the matter does not end there for, according to the Plaintiff the development of computers is such that components are becoming smaller so his problems have been exacerbated to date and, based on the past performance of that industry; it seems reasonable to postulate that computer components will become even smaller in the future.

29. The Plaintiff went on to say that his injury had already affected his employment situation in that he has not been promoted or been able to obtain higher paid employment in direct contrast to his colleagues at work and his classmates at evening schools. It may be that, as a result of his loss of confidence he has not tried very hard to obtain other and higher paid employment, but in my judgment his failure is indicative of the fact that, whilst his company may be prepared to carry him in, the over-full employment situation which exists in Hong Kong at present, should that situation change he is likely to be dismissed sooner rather, than later than his colleagues, and he will have greater difficulty than they in finding alternative employment.

30. Finally, I turn to one aspect of the consequences of monocular vision which I regard as of importance anti which I cannot find as having been considered. in any of the authorities to which I have been referred, namely the increased possibility of total blindness. At the outset, I must make it. quite clear that, there is no reference to this in any of the medical reports before me, which is why, after some consideration, I have decided to address the point under this head rather than the previous one.

31. I can, I consider, take judicial notice of the fact that it is in the nature of the human condition that there is a tendancy for eyesight to deteriorate with advancing, years, particularly in the case of a person who has to wear spectacles from a relatively early age and is required to undertake delicate work. The Plaintiff it will he noted undertakes, such work and wore spectacles prior to the loss of sight in his eye. Furthermore, the deterioration in such sight is rarely, uniform in that one eye tends to deteriorate at a different rate to the other.

32. I accept that there is no evidence before me in the present case to say which is, or is likely to be, the Plaintiff's. "favoured" eye, but as he only had two eyes I consider that there must be a possibility, beyond mere speculation but less than, a probability, that in the fullness of time the remaining eye would, have been the weaker of the two and consequentially brought about total blindness and a concomitant loss of employment, earlier than it would otherwise have I occurred, if at all. However, I would accept that if the matter ended there, whilst it would be taken into account it would, not weigh heavily in making an award under this head, but in my judgment it does not. The Plaintiff said in evidence, and I accept what he said, that "my eyesight is not as wide as ordinary people". In other words the loss of his eye has materially affected his peripheral vision.

33. If a person were to live in a quiet rural environment the loss of peripheral vision would be of little consequence, but the Plaintiff does now. He lives in Hong Kong, one of the most crowded cities In the world. It does not take much imagination to appreciate the increased risks of injury such a person faces in going about his daily tasks. In order to illustrate my point I will lake a simple example W walking through the Central in the rush hour in the rainy season. It is difficult enough for a person with good eyesight to avoid the umbrellas coming from all direction. Hence, if one only has monocular vision the impossibility of seeing pedestrians, advancing heads down and umbrellas up, from one's blind side must, in my judgment, materially increase the possibility of bodily injury in general, and damage to one's remaining eye in particular, either of which could, in the case of the former and would, in the case of the latter, materially affect one's earning capacity.

34. Thus, bearing in mind the Plaintiff's relative youth I have no doubt that, he faces a real and substantial risk, of loss of future earning capacity. Clearly this is a case where a global award should be made. There is a dearth of authority on the, quantum of, such award where a young working man has loss the sight in one eye - the only recent one to which I have been referred is the award by Master O'Donnell in Fong Pak-lam, where he awarded $90,000.00. In the present action, for the reasons detailed above, I consider that an award of this sum would be far too low. Accordingly, I assess the award for loss of future earning capacity at $150,000.00.

Future Prostheses and Medical Expenses

35. The Defendant's Solicitor' did not dispute that the Plaintiff's claim for these items was other than proper. What he did question was the quantum. He urged me to adopt what he called the "multiplier approach" to the cost of replacement prostheses. By that be submitted that I should determine the appropriate multiplier, of say 15, and divide that by the life of the prosthesis i.e. 10 years.

36. I do not consider that this is the correct approach. In my judgment, one should look at the Plaintiff's life expectancy, i.e. about 70 years today, acknowledge the fact that, at no time in his life will he wish to venture out with an empty eye socket; divide that by the life of the prosthesis and give a twenty-five percent discount for advance payment.

37. Applying that test the Plaintiff will require, in round figures, three replacement prostheses at a cost of $10,000.00 each. Hence, after making a deduction of twenty-five percent I award $22,500.00.

38. As to the future medical expenses, these are directly related to the maintenance of the prosthesis and eye-socket and run at the rate of $400.00 per annum. I will adopt the same approach to these as to the replacement of the prosthesis and calculate the award as: follows:-

39. 44 years x $400.00?5% = $13,200.00.

40. In summary therefore I award:-

41. There will be interest on the general damages at the rate of 2% per annum from the date of writ to the date of this assessment. There will be no interest on the awards for loss of future earning capacity, future medical expenses and replacement prostheses, but the agreed special damages will have interest at the rate of 4% per annum from the date of the assault to the date of this assessment.

42. The Defendant shall pay the Plaintiff's costs of this assessment, which shall be taxed if not agreed, and the Plaintiff's own costs shall be taxed in accordance with Legal Aid Regulations.