Bereft of Beauty: Cosmetic Injury Claims

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If an accident turns you from a beauty into a beast, would you be able to claim for your cosmetic loss from the person who caused it?

Where is the Loss?
It may be thought that accidents that alter one’s appearance for the worse cannot be claimed for since, unlike other personal injury claims, the claimant has not lost an arm or broken a leg affecting his/her earning capacity or abilities to function normally as before. However, physical deformity resulting from an accident does cause a certain extent of social embarrassment and inconvenience to the victim, for which the Courts have awarded damages.

Part of the Package
The Courts have ruled that cosmetic injury claims are part of the claim for pain, suffering and loss of amenities (“PSLA”). PSLA is a monetary award made by the Courts for the pain, suffering and human deprivation arising from injury, both physical and mental, sustained by the Plaintiff as a result of the Defendant’s tortious acts. There is no separate head of claim for cosmetic injuries.

In Kan Kit Yuk v Chung Kwok Chuen [1997] 2 HKC 21, the Court stated that disfigurement was no different from other physical or mental injuries under the claim for PSLA and did not entail making a separate award for cosmetic injuries. The Court could therefore make a global award under PSLA taking into account the cosmetic injuries. In Ng Chi Chung v Lau Kam Ping [2000] 2 HKC 759, the Court held similarly that it was conceptually wrong to make separate awards for cosmetic injuries as an independent head of loss. Were it otherwise, separate awards would then be made to mental impairments, anxiety and shock or even for each physical injury to the limbs. Instead, the correct approach is to view all factors such as injuries, sufferings, disabilities, impairment in enjoyment of life and make a global award for PSLA with an upward adjustment to take into account the cosmetic injuries.

What Can Be Claimed

Grave
Kan Kit Yuk and Ng Chi Chung are both cases in which the Plaintiffs suffered severely and predominantly from cosmetic injuries as a result of the accident. In Kan Kit Yuk, the Plaintiff was a 21 year old lady who suffered burns to 25% of her body. This resulted in extensive ugly and conspicuous keloidal burn scars over most of the left side of her face and neck and other parts of her body. The Court held that her injuries were extensive. Taking into account various factors such as the devastating extent of her facial and bodily disfigurement, the unlikelihood that she will ever marry and have children, her inability to enjoy outdoor sports which she had previously done due to the loss of strength and dexterity in her hands, the Court classified her injuries in the disaster category and awarded her $1.2 million for PSLA.

In Ng Chi Chung, the Plaintiff was a 23 year old final year male student of a bachelor degree in marketing and a keen swimmer who was injured in a traffic accident suffering severe crush injuries to his left forearm and left hand. He had to undergo 12 surgical operations which left him with multiple large, raised and pigmented surgical scars over all 4 limbs which were conspicuous and unsightly. The Court considered that the Plaintiff would come within the upper end of the substantial injury category, which would be $792,000, but that an upward adjustment should be made for the cosmetic injuries. Taking in account his young age of 27 at the time of trial, the fact that he would need to adhere to long sleeve garments and trousers to conceal the scars, the embarrassment the injuries caused him and their adverse effect on his socialising and courtship, the Court awarded him $1 million for PSLA.

Intermediate
The female Plaintiff in Yeung Shan Yee Sandy v Singway (BVI) Co Ltd & Anor (DCPI 1030/2005) slipped and fell on the steps of a building owned by the Defendant, which resulted in scars on her forehead and nose. According to the Plaintiff, the scars were very red, uneven, swollen and bruised when she was discharged from the hospital. They had become inconspicuous at the time of the trial as the colour of the scars had faded and become similar to that of the Plaintiff’s cheek. The Court took into account the fact that the Plaintiff is a woman who would presumably be more conscious about her appearance than a man and awarded $200,000 for PSLA.

Mild
In Shabbina Khokhar v Europe Beauty International Ltd (DCPI 579/2007), the female Plaintiff suffered multiple burn wounds to her arms after an Intensive Pulse Light therapy treatment at the Defendant’s beauty salon went awry. The wounds left irregularly pigmented scars. Most of the scars were only evident upon close examination but patches of them were readily evident where the scars were deeper near the elbow region. Apart from the physical pain she underwent, the Court also considered cosmetic factors such as the embarrassment caused, which was exacerbated by the Plaintiff’s young age and gender, the anxiety caused by the burns as the Plaintiff had an impending wedding scheduled shortly after the treatment and the restriction in clothing that she could wear and assessed PSLA at $120,000.

Valid but Variable
The review of cases shows that the claims made by Claimants who suffered from cosmetic injury are sustainable but the amount of the claims vary depending on the particular facts of each case. As the cases are fact-specific, there is no hard-and-fast rule but it can be seen that the courts will consider factors such as age and gender, the extent of overall impairment, the degree of deprivation from social activities and the social embarrassment that the cosmetic injury causes to each claimant in assessing quantum.

 
IMPORTANT:
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
 
For enquiries, please contact our Insurance & Personal Injury Department:
E: insurance_pi@onc.hk
W: www.onc.hk
T: (852) 2810 1212
F: (852) 2804 6311
 

Published by ONC Lawyers © 2014