The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, on September 30, 2011, in the case “Veron Cutajar vs Lilian Bugeja” held, among other things, that a cosmetic defect merited compensation, even if there was no functional disability.
The facts in this case were as follows:
On September 26, 2003, 17-year-old Veron Cutajar went to the hairdresser to have highlights done to her hair. She had had highlights on other occasions without any problems, but this time, during the application of bleaching chemicals to her hair, she experienced a burning sensation to her scalp. She allegedly remarked about this to Lilian Bugeja, the hairdresser, who apparently wet her hair to try to reduce the pain.
The hairdresser had been negligent for failing to warn her customer of the risks involved
In her testimony, Ms Bugeja gave a different version of events. She claimed that Ms Cutajar had not mentioned anything at the time of the incident.
Ms Bugeja said it was only after six weeks that Ms Cutajar confronted her. Ms Cutajar blamed Ms Bugeja for causing permanent scarring to her left parietal scalp, and for complete hair loss (alopecia) in a patch measuring 2.5 cm by 1.5 cm, as a result of the chemical bleaching treatment to her hair.
Medical experts certified her injury as a two per cent permanent disability, even if her bald patch was not entirely visible and could be covered by her hair.
During court proceedings medical experts confirmed that the bleaching chemicals applied to highlight her hair had irritated and scalded the left part of Ms Cutajar’s scalp. She had inflammation and, later, infectious blisters.
By the time Ms Cutajar sought medical aid, it was too late to reverse the harm. As the inflammation was not treated promptly from the start, her condition was aggravated.
Faced with this situation, Ms Cutajar proceeded by filing legal action against Ms Bugeja to recover damages. She asked the First Hall of the Civil Court to declare the hairdresser as solely responsible for permanently scarring her scalp as a result of the hairstyling on September 26, 2003, owing to her negligence; and to liquidate and to condemn her to pay the damages.
In reply, Ms Bugeja contested the legal action against her and denied responsibility for Ms Cutajar’s injuries, which she claimed had been brought about by other factors.
She also claimed that the First Hall of the Civil Court was not competent ratione valoris as the quantum of damages was under Lm5,000.
It was submitted that Ms Cutajar had to show that her injury had been directly caused by the hairstyling session on September 26, 2003.
On January 29, 2001, the Court of First Instance held Ms Bugeja to be responsible for damages owing to her negligence, lack of care, diligence and attention up to the standards of a bonus pater familias (good father); re: Cremona vs Cremona PA dated February 13, 1905); and Josephine Borg vs A. Fiorini PA dated July 17, 1994. She had not acted up to the standards expected in the exercise of her trade.
Victim Ms Cutajar was also partly to blame for not seeking timely medical attention. The first time she consulted a doctor was on November 15, 2003, a few weeks later. It was possible that this delay had worsened her condition, though the court said she would still have suffered permanent disability.
The First Hall of the Civil Court affirmed its competence to hear this case. It had jurisdiction to decide a case if the claim as formulated in the writ of summons came within its competence, even if later it resulted that the damages were below the threshold of its competence (Lm5,000); re: J. Vella vs J. Lautier (CA dated December 3, 2004).
The First Hall accepted the medical experts’ opinion that the percentage of Ms Cutajar’s permanent disability was two per cent. It was satisfied with the evidence that the cause of the irritation and scalding to Ms Cutajar’s scalp was by the application of the bleach preparation on her hair by Ms Bugeja on September 26, 2003. The bleaching chemicals had burnt her scalp, noted the court.
The hairdresser had been negligent for failing to warn her customer of the risks involved in the hairstyling process and in not offering any suggestions or remedies.
Once the hairstyling had caused such inflammation, it was clear that Ms Bugeja had not taken necessary professional precautions to use bleaching chemicals without any injury to Ms Cutajar.
As regards the apportionment of responsibility the court held Ms Bugeja to be responsible for the 1.5 per cent permanent disability and Ms Cutajar for 0.5 per cent.
The court expressed no doubt that Ms Cutajar was entitled to compensation for her loss of hair, which type of injury was of an economical and emotional nature and not simply moral. Even if this type of injury did not impede a person from working, the court noted that it limited job opportunities and the lucrum cessans aspect had to be considered: A. Vella Falzon vs G. Vassallo vs J. Sammut PA dated October 5, 2002 and S. Falzon vs J. Sammut PA dated December 14, 2001. In this case the material damages amounted €155.
To calculate Ms Cutajar’s loss of income damages, it multiplied her working life expectancy (40 years since she had been 17 years old at the time of the incident) by her gross salary, increased slightly owing to the possibility of future increases (€10,249) and by 1.5 per cent permanent disability (€6,149). A 10 per cent lump sum reduction was made from this amount. Owing to the delay the standard 20 per cent deduction was reduced at the rate of two per cent per year. Reference was made to case law.
The total damages to be awarded to Ms Cutajar amounted to €5,689.
Aggrieved by the decision of the Court of First Instance, Ms Bugeja entered an appeal, calling for its revocation. Her five grievances against the decision of the First Hall of the Civil Court related to her responsibility for the permanent disability; the apportionment of blame; the nature of the disability; the multiplier adopted by the Court of First Instance; and the calculation of the lump sum reduction.
On September 30, 2011, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the First Court. The Court of Appeal gave the reasons for its decision.
As to responsibility for damages, in view of the medical testimony and the nature of the injury, the court was satisfied with the evidence that the injury had been inflicted as a direct result of the application of the bleaching chemicals to Ms Cutajar’s hair. In this respect, the Court of Appeal agreed with the Court of First Instance that Ms Bugeja was responsible for the damages.
The court noted that the assessment of disability was discretionary. In view of the fact that the percentage of disability was not substantial and in the light of conflicting statements by the court expert and the private expert, the court did not feel it necessary to vary the apportionment of blame.
As to the nature of the disability, the court was of the opinion that the injury suffered by Ms Cutajar was a cosmetic defect which merited compensation, even if there was no functional disability.
A 40-year multiplier was not extraordinary in the circumstances, given that the victim had still been 17 years old. The fact that a woman could leave her job did not mean that she was not entitled to compensation. Housework also had a monetary value, indicated the court.
On the lump sum deduction, the court said that following the decision in M. Caruana vs Grazio sive Horace Camilleri (PA) dated October 5, 1993, it was the practice to reduce at the rate of two per cent for every year of delay from the date of the incident until the decision of the court. In this respect, this court agreed with the First Hall of the Civil Court.
Dr Karl Grech Orr is a partner at Ganado & Associates.