Ipsofactoj.com: International Cases [2001] Part 2 Case 7 [CFA]


COURT OF FINAL APPEAL, HONG KONG SAR

Coram

Lam

- vs -

Tsang

(administratrices of the estate of To Shing Chiu)

CHIEF JUSTICE LI

MR JUSTICE BOKHARY PJ

MR JUSTICE CHAN PJ

MR JUSTICE LITTON NPJ

SIR ANTHONY MASON NPJ

20 FEBRUARY 2001


Judgment

Mr Justice Bokhary PJ

INTRODUCTION

  1. Where a person is killed by an act or omission giving rise to a cause of action which survives for the benefit of his estate, the damages recoverable for the benefit of his estate may include an award in respect of loss of accumulation of wealth. Such an award is recoverable if and in so far as the court is satisfied that, but for such fatal act or omission, he would have left an accumulation of wealth by the time when he would otherwise have died. Section 20(2)(b)(iii) of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, so provides.

  2. This appeal is brought by leave of the Court of Appeal. It granted such leave because it was of the opinion that this case involves three questions which, by reason of their great general or public importance, ought to be submitted to this Court for decision. Those three questions are formulated thus in the schedule to the Court of Appeal's order granting leave to appeal to this Court:

    I

    In determining whether to award damages for the loss of an accumulation of wealth in accordance with Section 20(2)(b)(iii) of the Law Amendment and Reform (Consolidation) Ordinance Cap.23, whether, absent any proven evidence of an established pre-mortem pattern or habit of savings or a propensity for such by the deceased himself, it is open to the court to assume that the deceased would have accumulated such wealth by developing such a habit in the future?

    II

    If such an assumption is deemed to be appropriate, on what basis is the calculation to be made to arrive at the sum that would have [been] accumulated by the time that the deceased died other than as a consequence of the fatal accident?

    III

    Inasmuch as there is a conventional basis upon which a lump sum is calculated to produce a future income stream for future pecuniary loss, is it not appropriate to calculate the loss of accumulation of wealth by adopting the same formula of multiplier and multiplicand and discounting for the expenditure which the deceased would have incurred between his retirement and ultimate death?

    [emphasis in original]

  3. Shortly stated, the circumstances of this case are as follows. Mr. To Shing Chiu, deceased ("the deceased") was a painting worker. Tragically he lost his life in an accident at work on 19 September 1995 when he fell to his death from a defective bamboo scaffolding on which he had been perched while painting the external surface of a building under construction. Such painting work had been sub-sub-contracted to the deceased's employer.

  4. On behalf of the deceased's estate and his dependants, the deceased's administrices sued his employer and the principal contractor. Liability was disposed of by an agreement reached by the parties and approved by the trial judge, Seagroatt J. It was thus resolved that the employer and the principal contractor would be jointly and severally liable to pay 85 percent of the damages to be assessed. So the trial was only as to damages. On 16 April 1999 the judge assessed damages at $2,456,120 and entered judgment for the administrices for 85 percent of that sum, which came to $2,087,702, and for interest and costs. The heads under which the judge awarded damages included loss of accumulation of wealth and the widow's own loss of earnings. Before the 15 percent deduction which he made to reflect the approved agreement as to liability, the judge awarded $320,000 for loss of wealth and $564,000 for the widow's own loss of earnings.

  5. The employer and the principal contractor appealed to the Court of Appeal against those two awards. On 29 February 2000 the Court of Appeal (Godfrey VP and Rogers and Ribeiro JJA) allowed that appeal to the extent of setting aside the award for the widow's own loss of earnings, sympathising with her but regarding it as too remote. The award for loss of accumulation of wealth was affirmed by the Court of Appeal. And it is now the sole subject-matter of the appeal to this Court brought by the employer and the principal contractor. In this Court they are the appellants while the administrices are the respondents.

    THE RELEVANT FACTS

  6. I turn now to the facts relevant to the claim for loss of accumulation of wealth. Such facts, as found by the judge and affirmed by the Court of Appeal, were these. The deceased was a married man with two children. He was aged 42 at the time of his death. His wife was then aged 38, their daughter was then aged 15 and their son was then aged 6.

    Each month the deceased earned $16,708. Out of that, what he used to do each month was as follows. He

    1. handed $8,000 over to his wife;

    2. paid $1,132 rent;

    3. spent about $500 on utilities;

    4. gave $2,000 to his parents;

    5. spent about $1,000 on his family in respect of things such as meals outside the home, entertainment and presents; and

    6. spent the remaining $4,000 odd on his own travelling expenses, meals on his own outside the home and so forth.

    His wife was in employment at the time of his death. She was a quality control inspector, earning about $5,300 per month and contributing about $3,000 per month to the household's expenses (but she gave up work after her husband's death, hence the claim for her own loss of earnings). At the time of the deceased's death, his daughter was about to take up employment (and she started working as a sales assistant about three months after her father's death). The deceased's son was in school (and remained in school following his father's death).

  7. As is implied by the first of the three question scheduled to the Court of Appeal's order granting leave to appeal to this Court, the deceased had not accumulated any wealth during his lifetime.

    THE APPROACH OF THE COURTS BELOW

  8. Those three questions were drafted by counsel for the appellants. As we have seen, the first question uses the word "assume" rather than the word "infer" and the second question uses the word "assumption" rather than the word "inference". But that does not mean that the judge or the Court of Appeal decided the accumulation of wealth issue in the respondents' favour through a process of assumption. It is clear that they did so through a course of reasoning.

  9. Loss of accumulation of wealth was dealt with thus in the Statement of Damages served by the administrices pursuant to Order 18 rule 12:

    (a)

    The Deceased was a responsible husband and father. He was a frugal person and did not have any undesirable habits e.g. smoking or gambling.

    (b)

    Although he did not have any established saving pattern at the time of his death, he would have been able to save some money, in particular, when his parents had passed away and his children ceased to depend on him. It is probable that he would have been able to accumulate some wealth at the time of his natural death.

    (c)

    The Plaintiffs claim a global sum of HK$50,000.00 under this head.

  10. As we have seen, the judge awarded much more than that under this head. He explained how and why in the following way. First, he set out the facts which he found and on which he proceeded:

    Although the deceased had not accumulated any savings by the time of his death he was clearly in a position to have done so but for some unknown factors. He 'retained' for his own use, subject to extra expenditure which a father breadwinner would naturally tend to spend on his family, about $4,000. It is probable that his earnings enabled his wife to accumulate savings from her own earnings. She told me she had accumulated $30,000 at the time of his death.

    Since he was a frugal man and not given to selfish indulgence, I think he would have begun to accumulate some savings, probably of the order of $1,000 per month at or about the time of trial. This would have increased by the time his parents were no longer alive by about $2,000 per month. When his son was about 18 those savings would have increased further.

    Then he made his award, saying:

    Applying the realities, translated into a calculation which is inevitably a degree arbitrary, I think the following is fair:

    $1,000 x 12 x 4

    =

    48,000

    then

    $3,000 x 12 x 4

    =

    144,000

    then

    $6,000 x 12 x 2

    =

    144,000

    =

    336,000

    Should this figure be discounted to any extent by any exceptional vicissitudes (i.e. other than the normal risks and uncertainties of life and the acceleration of receipt which are already reflected in the multipliers) such as a particularly harsh economic climate? I think the figure could reasonably be rounded down to $320,000 to allow for a little over one year without savings in view of the current economic state.

    I realise that this sum is significantly higher than contended for by Mr. Lam on behalf of the Plaintiff. However his figure is in my view far too modest given the deceased's earnings, his way of life, and the available earnings which would have found their way into some account to demonstrate a prudent and concerned breadwinner. I am sure his wife would have been an influence in that direction if he needed one.

  11. To see those multiplicands (especially the first one) in context, it should be noted that Seagroatt J had, in an earlier part of his judgment, found that the deceased's earnings would have increased to about $20,000 per month by the date of the trial.

  12. In the Court of Appeal, Rogers JA ( with whose judgment Godfrey VP and Ribeiro JA agreed) said:

    In my view, the judge below took an overall view of the evidence relating to the deceased and his family. He appreciated the fact that whilst the deceased was bringing up a young family and was also helping his parents, his expenditure would be high but that in the years to come, as the deceased approached his old age, it was likely that he would save .

    In my view, the fact also has to be taken into account that the plaintiff had been able to make modest savings. Whether one regards that as being out of her own income or as a result of the monthly payments to her from the deceased, giving her excess money, the court was also justified in looking upon that as being part of the family savings.

    The amount which a court can award in respect of loss of accumulation of wealth must be a result of a matter of impression and depend upon the judge's assessment of the evidence, including the nuances and impressions he receives as a result of seeing and hearing that evidence. In my view, this court should not interfere with this award. It was a reasonable assessment based on the deceased's circumstances, taking account of what the court below had been told of the deceased and using common-sense.

    MUST THERE HAVE BEEN A PATTERN OF SAVINGS?

  13. For the moment, I leave out any question of receipt under the Mandatory Provident Fund scheme. Mr. Neville Sarony SC for the appellants submits that there must be a pattern of savings before there can be an award for lost of accumulation of wealth. In so submitting he dealt with the legislative history of the loss of accumulation of wealth provision. And his printed case includes two specific features of that legislative history. One is what the Law Reform Commission said in its 1985 report on "Damages for Personal Injury and Death" leading to the amendment which introduced the loss of accumulation of wealth provision. The other is what the Attorney General of the day said in the Legislative Council on 29 January 1986 when moving the second reading of the bill which introduced that amendment.

  14. The relevant statements in the report include the one (in para. 11.37) that the recommendation in question would

    .... enable the estate of the deceased person with an established pattern of savings (e.g. a middle-aged family man) to recover the loss of future savings but will eliminate claims in the case of a young person with no savings pattern.

  15. But that does not address, for example, the case of a frugal middle-aged family man with obvious potential to accumulate wealth in future. The Attorney General's statement (at p.558 of Volume 1 of Hong Kong Hansard for the 1985/86 Session) is that the amendment introduced "a new formula based on the deceased's actual savings record". But s.20(2)(b)(iii) says nothing as to a savings record.

  16. Whatever scope there may or may not be for using material of this nature to interpret statutes, I am satisfied that there is nothing in any of the statements relied upon by the appellants which warrant reading down s.20(2)(b)(iii) in the way which they propose. So the present appeal is not an occasion for this Court to decide whether, and if so to what extent, the approach favoured by the majority of the House of Lords in Pepper v Hart [1993] AC 593 is appropriate for Hong Kong.

  17. It may well be that at least in the general run of cases the surest possible foundation for an award for loss of accumulation of wealth would be a pattern of savings by the deceased during his lifetime. But is such a pattern of savings an absolute pre-condition to such an award? The appellants submit that it is while the respondents submit that it is not. In determining this issue, the first thing to note is that the statute itself does not lay down any such pre-condition. All that s.20(2)(b)(ii) requires is that the court be satisfied that, but for the act or omission which killed him, the deceased would have achieved an accumulation of wealth by the time that he would otherwise have died.

  18. I can see no basis for saying that the absence of a savings pattern by the deceased during his lifetime invariably precludes the court from being able properly to conclude that he would have achieved an accumulation of wealth if he had lived on. Take the example of a relatively young married man or woman with a strong sense of family responsibility. With that sort of person there would be strong prospects of achieving an accumulation of wealth at the end of a life of average span for a person like him or her. Nevertheless the financial responsibilities which such a person had faced may have prevented him or her from accumulating any wealth before an early and untimely death. But that does not mean that an accumulation of wealth would not have been achieved given an average life span.

  19. Assessing damages is seldom easy. And it tends to be especially difficult where future loss is involved. The judicial statements to that effect are legion. And they are readily explainable. Weighing evidence to decide what in all probability had actually happened is difficult enough. It is only natural that the difficulty is far greater where the determination to be made is of what would have happened but for the event giving rise to liability. For then the court is often heavily engaged in pondering the well-nigh imponderable. It is often driven close to crystal-gazing. All of these difficulties are in full attendance where the assessment of an award for loss of accumulation of wealth is concerned. But the mere fact that an assessment is extremely difficult does not relieve the court of its duty, or deprive it of its ability, to make that assessment. The court, in the time-honoured expression, does the best it can with what it has.

  20. Two statements in the House of Lords are of particular relevance. I will take the later one first. It was made in Davies v Taylor [1974] AC 207. There the widow had left her husband some five weeks before his death. The issue was whether she would have returned to him and therefore have benefitted if he had not been killed. On this issue Lord Reid said (at pp 212H-213C) this:

    When the question is whether a certain thing is or is not true - whether a certain event did or did not happen - then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.

    But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent.: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.

  21. It is true that Davies v Taylor is, as the learned author of "McGregor on Damages" 16th ed. (1997) points out at p.248 para. 378, a loss of chance case. Even so, Lord Reid's logic is of general application. And in the other statement to be cited, that of Lord Diplock in Mallett v McMonagle [1970] AC 166, the word "chances" is used in a general discussion of the court's role when assessing damages upon the basis of its view as to what would have happened but for the act or omission giving rise to liability. For what Lord Diplock said (at p.176E-G) is this:

    The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.

  22. For the reasons given above, I reject the notion that a pattern of savings by the deceased during his lifetime is an absolute pre-condition to an award for loss of accumulation of wealth. Even in the absence of any savings during the deceased's lifetime, there may in any given case be, on a balanced view, real prospects of an eventual accumulation of wealth such as to justify an award for loss of accumulation of wealth. The court then assesses the award in accordance with those prospects as it sees them.

  23. I should mention that Mr. Sarony submits that if a loss of accumulation of wealth award can be made in a case like the present one, then so can such an award be made for the estate of, for example, a teenaged deceased who had not even been in employment when he died. I do not wish to say anything which may pre-judge any claim which may be made on behalf of such an estate in future. But I consider it legitimate to say, in favour of the award in the present case, that the further one has to look into the future the more difficult it naturally becomes to find real prospects, as opposed to a mere speculative possibility, of a future eventuality of the sort here in question.

  24. Having come on first principles to the conclusion that a pattern of savings is by no means an absolute pre-condition to an award for loss of accumulation of wealth, I should mention that there are in fact many cases in which judges and masters have made such awards even though the deceased had not made any savings during his or her lifetime. These cases include all of the cases which I list out later on in this judgment to show that both the global basis and the multiplier and multiplicand method have been resorted to by judges and masters making awards under this head.

    MANDATORY PROVIDENT FUND

  25. As for the Mandatory Provident Fund scheme, it is perhaps too early to tell just how it will affect accumulations of wealth in future. But even at the present time, one can at least proceed on the following footing. On the one hand, the scheme may somewhat diminish what people will tend to accumulate during their working years. On the other hand, any receipt under the scheme would swell or form the wealth of the deceased in question. And the scheme is after all designed to make people better off at the end of their working lives than they would otherwise have been.

    EXPENDITURE DURING RETIREMENT

  26. This brings me to the question of the basis on which accumulation of wealth awards are to be calculated. On this question the main point taken on behalf of the appellants concerns expenditure during retirement. The calculation, Mr. Sarony submits, does not end with the position reached at the end of the working life in question. It must also, Mr. Sarony submits, take into account any inroad which expenditure by the deceased during retirement would have made into any accumulation of wealth which he had achieved by the end of his working life.

  27. Certainly the court is not concerned merely with what the position would have been at the end of the working life of the deceased. Rather is the court concerned with what the position would have been at the end of his notional full life i.e. upon his death given an average life span. For an award for loss of accumulation of wealth is compensation for the loss of what would have passed to the deceased's estate upon his death after having lived out an average life span.

  28. The possibility of an accumulation achieved by the end of a working life being diminished by expenditure during retirement was discussed by Deputy Judge Jones in Ho Pang Lin v Ho Shiu On [1994] 2 HKLR 313 and by Deputy Judge Lugar-Mawson in Dall v Choy Ying Wai [1999] 1 HKLRD 705. In each of those cases an award for loss of accumulation of wealth was made. The decision most in favour of the present appellants is that of Kaplan J in Re Lau Chuen-fat [1994] 2 HKLR 173 where no award was made for loss of accumulation of wealth. Kaplan J referred to - and felt unable to agree with - Nazareth J's approach in Chan Yuk Yin v Chan Cheung Wan [1990] 1 HKC 474 of taking a percentage of the deceased's earnings as the multiplicand and applying a multiplier to the same. At p.184 Kaplan J said:

    .... there is a difference between building up savings during one's life time and those savings still being in existence at the date when death from natural causes occurs. People often do save during the course of their working life to provide for their retirement. As the population grows older, and people live longer, it is more likely than not, in my view, that any savings accumulated during the working life of people in the position of the deceased in the case before Nazareth, J. and the case before me would have been used up by the time of natural death.

  29. No court would ever set up the dismal hypothesis of a man saving up during his working life for his retirement and then, during an anxious retirement, using up all of his savings so that he spends his last cent as he draws his last breath. Such a notion is wholly unrelated to reality barring an instance of the most astonishing coincidence.

  30. It is only to be expected that any accumulation of wealth made during the working years would yield income - whether such income be in the form of rent, dividends, interest or anything else - during the retirement years. And there is also the question of pension and the like. Thus if the court were to find in any given case that an accumulation of wealth would have been achieved by the notional time of retirement, the realistic possibilities, factoring in probable inflation, would then be as follows:

    1. expenditure during retirement may exceed the income from the accumulation plus any pension and the like received during retirement so as to exhaust the accumulation some time before the notional time of death, thus leaving the deceased dependent upon state, family or other help during his notional final years; or

    2. post-retirement expenditure may exceed post-retirement receipts but only so as to diminish the accumulation without exhausting it; or

    3. such receipts may more or less match such expenditure so as to leave the deceased's financial position at the notional time of death much the same as it had been at the notional time of retirement; or

    4. it may even be that such receipts would exceed such expenditure so as to leave his financial position better at the notional time of death than it had been at the notional time of retirement.

  31. It would be for the court to select from these possibilities the one which it considers the most realistic in the particular circumstances of the case, remembering that the burden lies on the party who asserts.

  32. Finally on this aspect of the case, the point should be made that the absence of any express reference by a judge or master to the impact of post-retirement expenditure on pre-retirement accumulations does not necessarily mean that the matter had been ignored. As Birkett LJ said in Dorrington v Griff Fender (Swansea) Ltd [1955] 1 WLR 690 at p.694:

    Merely because a judge does not mention a thing, it does not follow that he has not had it in mind.

    The traditional premise, articulated or unarticulated, on which judges and masters have proceeded would, I am reasonably confident, be the one indicated by Deputy Judge Lugar-Mawson in Dall v Choy Ying Wai when he said at p.723 that:

    Traditionally [an accumulation of wealth] has been taken to mean the amount which a deceased would have saved during his working life, not spent during his retirement and died possessed of.

    The presumption, rebuttable of course, is that, in one way or the other and whether articulated or not, all the factors constituting the traditional understanding would have been taken into account.

    ON A GLOBAL BASIS OR BY THE MULTIPLIER AND MULTIPLICAND METHOD?

  33. The remaining question of principle is whether awards for loss of accumulation of wealth ought to be calculated on a global basis or by the multiplier and multiplicand method. As we have seen, Seagroatt J used the multiplier and multiplicand method or at least elements thereof in calculating the loss of accumulation of wealth award which he made in the present case.

  34. Looking at the past awards made by judges and masters for loss of accumulation of wealth, one finds some made on a global basis and others made by the multiplier and multiplicand method. The cases in which global awards were made include:

    1. Ho Pang Lin v Ho Shiu On (where Deputy Judge Jones made a global award of $100,000 in respect of a man who had been earning $8,183.33 per month when he died aged 40);

    2. Kwan Lai Kuen v National Insurance Co. Ltd [1998] 1 HKC 98 (where Keith J made a global award of $100,000 in respect of a man who had been earning $6,000 per month when he died aged 20);

    3. Kwan Yau Tai v Eng Kong Container Services Ltd [1998] HKLRD (Yrbk) 329 (where Master Chu made a global award of $200,000 in respect of a man who had been earning $9,192 per month when he died aged 27);

    4. Cheng Ching Muk v Wah Nam Travel Service Ltd [1999] 1 HKC 100 (where Master Ho made a global award of $150,000 in respect of a woman who had been earning close to $8,000 per month when she died aged 34); and

    5. Wang Chin Ying v Lam Ping Fung [1999] 3 HKLRD 190 (where Nguyen J made a global award of $100,000 in respect of a teenaged girl who had been earning between $6,000 and $7,000 per month when she died aged 17).

  35. The cases in which the multiplier and multiplicand method was used include:

    1. Chan Yuk Yin v Chan Cheung Wan (where Nazareth J awarded $154,860 by adopting a multiplier of 15, which was not disputed, and a multiplicand of 10 percent of earnings);

    2. Cheung Yuk Shiu v Registrar General (1990) HKLY 514 (where Master Chan awarded $194,675 by adopting a multiplier of 16 for a man who died aged 19 and a multiplicand of 10 percent of earnings);

    3. Tsang Choi Yung v United Christian Hospital (1993) HKLY 471 (where Rogers J awarded $1,020,900 adopting a multiplier of 14 for a man who died aged 25 and a multiplicand of 20 percent of earnings pre-trial and 40 percent of estimated earnings post-trial);

    4. Wong Mee Wan v Kwan Kin Travel Services Ltd (1993) HKLY 473 (where Mayo J awarded $153,000 by adopting a multiplier of 17 for a student who died aged 18 and a multiplicand of 10 percent of estimated earnings); and

    5. Ho Wun Chau v Chan Chuk Mui [1997] 3 HKC 666 (where Master Cannon awarded $100,800 by adopting a multiplier of 14 for a man who died aged 34 and a multiplicand of 10 percent of earnings).

  36. Neither the global basis nor the multiplier and multiplicand basis was resorted to in Dall v Choy Ying Wai. Deputy Judge Lugar-Mawson found that at the notional time of the deceased's death he would have had an interest worth £110,000 in one property in the United Kingdom and an interest worth £75,000 in another property there. The combined value of these two interests, being £185,000, was then discounted by 30 percent for early receipt to £129,500. And the equivalent in Hong Kong dollars of this discounted sum at the exchange rate of HK$13 to £1, being $1,683,500, was then awarded for loss of accumulation of wealth.

  37. Finding a multiplier for a loss of accumulation of wealth award would present no greater difficulty than finding a multiplier for a loss of dependency award. But finding a multiplicand for a loss of accumulation of wealth award would be very difficult, to say the least. Except in cases where there is something more to go on than one has in those cases where the court is driven to taking an almost arbitrary percentage of earnings as a multiplicand, judges and masters calculating such awards would be well advised to make global awards. This is not to say that a conventional figure across the board ought to be adopted. Nor is it to say that a figure should be plucked out of the air. Even where the exercise does not lend itself to the precision of a multiplicand as in loss of dependency claims, some process of ratiocination must underlie the global award made. And it is necessary that the judge or master indicate at least in general terms how the award has been assessed in the light of the relevant factors, including expenditure during the retirement years.

    AVERAGE

  38. Everything which I have said - both with specific reference to the facts of the present case and on the subject generally - has been on the footing of there being nothing to suggest that the deceased in question was likely to have anything other than a normal working life and life span. What the position would be in a case of any likely abnormality of that sort is best resolved in such a case.

    THE AWARD IN THE PRESENT CASE

  39. As for the present case, Seagroatt J's approach to damages for loss of accumulation of wealth involves no error of principle. In calculating the actual sum to be awarded, he faced a particularly difficult task. In a very careful manner, he went about doing his best with the material to hand, such as it was. Traditionally and naturally, the Court of Appeal is very slow to disturb an assessment of damages arrived at in those circumstances and in that manner. In the present case the Court of Appeal did not see fit to interfere. So the finding that the loss of accumulation of wealth in the present case came to $320,000 is before this Court as a concurrent finding of fact. As I have said, there is no error of principle involved. The sum awarded is not wholly discordant with the view of the evidence taken by the trial judge, concurred in by the Court of Appeal. Nor does the sum awarded lie outside the range within which an award could rationally be made in all the circumstances. So there is no flaw in such concurrent finding as would justify its review by this Court.

    RESULT

  40. Accordingly I would dismiss this appeal with costs to be taxed on a common fund basis if not agreed, ordering also legal aid taxation of the respondents' own costs. (The reason for common fund taxation is that the Court of Appeal gave the appellants leave to appeal to this Court on their undertaking that they would, whatever the result of such appeal, pay the respondents their costs to be taxed on a common fund basis if not agreed.)

    Mr Justice Chan PJ

  41. I agree with the judgment of Mr. Justice Bokhary PJ.

    Mr Justice Litton NPJ

  42. I agree with Mr. Justice Bokhary PJ's judgment.

  43. The trial judge was faced with assessing an award under the Law Amendment and Reform (Consolidation) Ordinance for "loss of accumulation of wealth" in respect of a skilled workman (a painter) who had died prematurely. The deceased was aged 42 at the time of the accident, in good health, earning about $16,700 a month. He was, as the judge found, "a frugal man not given to self-indulgence". The first question the judge had to consider must obviously be this : Would such a man, given his individual circumstances, have achieved an accumulation of wealth had he not met a premature death? The answer to this question depended upon a whole series of imponderables : What would he have earned during his working life? What (if any) savings would he have achieved? Would his savings have increased or decreased during his retirement years? The judge, understandably, adopted a broad approach, for the matter was incapable of much refinement. Take the analogous case of what used to be called a claim for the "lost years" : damages for loss of earnings during the years lost as a result of the premature death of the deceased : see for instance the leading case of Gammell v Wilson [1982] AC 27. At p.71-B Lord Edmund-Davies spoke of the criticism that

    any assessment is at best speculative, usually pure guesswork, and where there is any basis for making a calculation such a basis is frequently unreal.

    And, in the same case, Lord Fraser of Tullybelton said (at p.71-G to 72-A):

    It is particularly difficult to justify the law in cases such as the present, in each of which the deceased was a young man with no established earning capacity or settled pattern of life. In such cases it is hardly possible to make a reasonable estimate of his probable earnings during the 'lost years' and it is, I think, quite impossible to take the further step of making a reasonable estimate of the free balance that would have been available above the cost of maintaining himself throughout the 'lost years'. The amount of that free balance is the relevant figure for calculating damages. The process of assessing damages in such cases is so extremely uncertain that it can hardly be dignified with the name of calculation; it is little more than speculation ....

  44. Yet, trial judges had to do their best, applying their experience and common sense, to arrive at a fair figure. In Gammell v Wilson the awards of £6,656 for loss of future earnings in respect of a 15-year-old, and £17,275 (reduced by 10% for contributory negligence) in respect of a 22-year-old man were upheld.

  45. In Hong Kong, the claim for loss of accumulation of wealth came in by way of an exception to the abolition of the claim for loss of earnings during "the lost years". The provisions of s.20(2) of the Ordinance are set out in Mr. Justice Bokhary PJ's judgment and need not be repeated here. The legislative amendment was effected in 1986 and, by the time Seagroatt J gave judgment in 1999 in this case, the Hong Kong courts had accumulated considerable experience in dealing with such claims.

  46. A good way of testing the present award is to compare it with awards in previous cases, where the circumstances of the deceased persons are not wholly dissimilar. Take by way of example the first case referred to in the list of cases set out in Mr. Justice Bokhary PJ's judgment: Ho Pang Lin v Ho Shui On [1994] 2 HKLR 313 where, in respect of a 40-year-old bus driver (who had a 20% stake in the company which employed him), earning approximately $8,200 a month at the time of his death, the judge made a global award of $100,000. And take the case of Kwan Yau Tai v Eng Kong Container Services Ltd [1998] HKLRD (Yrbk) 329 which concerned a 27-year-old man working in a container-yard, earning about $9,200 a month, where the Master made a global award of $200,000. Or Cheng Ching Muk v Wah Nam Travel Service Ltd [1999] 1 HKC 100 which concerned a woman aged 34 who worked as a sales person earning about $8,000 a month, where the Master awarded a global sum of $150,000. Obviously, there are matters such as household and family expenditure and personal spending to be factored in. And individual characteristics widely differ. But, taking the award of $320,000 in this case simply as a figure, in respect of a man of 42 earning nearly twice the wages of the deceased persons in the three cases referred to above, it would not have struck the average man-in-the-street as wholly out of line.

  47. Where a tribunal is sailing in uncharted waters, it would be wise to take as many bearings as possible. A judge, after having heard all the evidence, may have a tentative global sum in mind. Where it is possible, it may be desirable for him to cross-check this with the multiplicand-multiplier formula, but remembering that this too is, by its nature, an inexact exercise. If the resultant figures more or less coincide, the judge can be reasonably confident that his global sum is not far off the mark.

  48. The main thrust of Mr. Sarony's criticism of the judge's award, affirmed by the Court of Appeal, is that there was no evidence of an established pattern of savings: Hence, counsel submits, to say that, by the time of the trial, the deceased would have embarked upon a modest trend of savings was mere surmise. He relies upon the Law Reform Commission's "Report on Damages For Personal Injury and Death" dated 5 October 1984 (which led to the 1986 legislative amendment) where the Commission (at p.18) envisaged that the claim for "loss of wealth" would:

    .... enable the estate of a deceased person with an established pattern of savings (e.g. a middle-aged family man) to recover the loss of future savings but will eliminate claims in the case of a young person with no savings pattern.

    [emphasis added]

  49. Whilst as a matter of common sense, the remarks quoted above would have considerable force in relation to a young person with no savings pattern, the legislation in its wording has left it to the court to exercise judgment generally : The only proviso being that in making an award the court is bound to make a deduction on account of the accelerated receipt. Mr. Justice Bokhary PJ in his judgment has used the example of a young married person beginning later on in life to accumulate wealth, when financial responsibilities may have eased. That is a clear case. Others come to mind. Human beings change with age. The spend-thrift young man of today may become a miserly middle-aged person later on in life. It is this which makes the assessment of damages under this head particularly difficult. So long as trial judges weigh up the evidence carefully and apply common-sense, it is unlikely that appellate courts would interfere. Rightly so. If there is one area of the law where courts have to be mindful of the incidence of legal costs, lest awards of damages be eaten away by the expense of fruitless attempts to achieve theoretical perfection, it is in the personal injuries field.

  50. I concur in making the orders proposed in Mr. Justice Bokhary PJ's judgment.

    Sir Anthony Mason NPJ

  51. I agree with the judgment of Mr. Justice Bokhary PJ.

    Chief Justice Li

  52. I agree with the judgment of Mr. Justice Bokhary PJ.

  53. The Court unanimously dismisses this appeal with costs to be taxed on a common fund basis if not agreed, ordering also legal aid taxation of the respondents' own costs.


Cases

Pepper v Hart [1993] AC 593; Davies v Taylor [1974] AC 207; Mallett v McMonagle [1970] AC 166; Ho Pang Lin v Ho Shiu On [1994] 2 HKLR 313; Dall v Choy Ying Wai [1999] 1 HKLRD 705; Re Lau Chuen-fat [1994] 2 HKLR 173; Chan Yuk Yin v Chan Cheung Wan [1990] 1 HKC 474; Dorrington v Griff Fender (Swansea) Ltd [1955] 1 WLR 690; Kwan Lai Kuen v National Insurance Co. Ltd [1998] 1 HKC 98; Kwan Yau Tai v Eng Kong Container Services Ltd [1998] HKLRD (Yrbk) 329; Cheng Ching Muk v Wah Nam Travel Service Ltd [1999] 1 HKC 100; Wang Chin Ying v Lam Ping Fung [1999] 3 HKLRD 190; Cheung Yuk Shiu v Registrar General (1990) HKLY 514; Tsang Choi Yung v United Christian Hospital (1993) HKLY 471; Wong Mee Wan v Kwan Kin Travel Services Ltd (1993) HKLY 473; Ho Wun Chau v Chan Chuk Mui [1997] 3 HKC 666; Gammell v Wilson [1982] AC 27; Ho Pang Lin v Ho Shui On [1994] 2 HKLR 313; Cheng Ching Muk v Wah Nam Travel Service Ltd [1999] 1 HKC 100

Legislations

Law Amendment and Reform (Consolidation) Ordinance, Cap. 23: s.20

Authors and other references

Law Reform Commission: "Report on Damages For Personal Injury and Death", 5 Oct 1984

Representations

Mr. Neville Sarony SC for the appellants (instructed by Messrs Deacons)

Mr. Albert Tsang for the respondents (instructed by Messrs Chan & Chuk).


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