KWAN CHING TONG HERBERT AND OTHERS v. LUK LAI KAM AND ANOTHER

1988, No. A5325

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. At about 3:30 p.m. on 11th September 1985, the deceased and her 9-year old daughter were stopped in their BMW car at the junction of Clearwater Ray Road and Hiram's Highway in the New Territories. In this position they were struck by a goods vehicle driven by the second plaintiff and owned by the first plaintiff.

2. After the impact, the goods vehicle pushed the BMW in front of it and collided with a stone wall, in the process overturning and completely crushing the car.

3. The mother, Jenny Kwan, was killed and her daughter Annette injured in the accident. This action is brought on behalf of the deceased estate and for the dependants of the deceased by the administrators as first plaintiffs. The dependants are named as Herbert Kwan, the widower of the deceased and Annette Kwan, the daughter of the marriage. Annette herself sues as second plaintiff for damages arising from her injuries.

4. The writ was issued on 29th July 1988 and interlocutory judgment was entered by consent on 18th September 1989. Documentary evidence was produced in an agreed bundle which is marked exhibit PD1. Four more documents were produced under hearsay notice on withdrawal of the counter notice at the hearing. This bundle is marked exhibit P.2. A pleadings bundle was also handed in.

5. I shall first consider the second plaintiff's claim for damages arising from her injuries. These are particularised as:

6. Oral evidence was given by Dr. Tony Loy, an orthopaedic surgeon, to whom the case was referred by the primary care doctor, Dr. Ko Sai Cheong. Dr. Loy also referred to his report at pages 10 and 11 of the hearsay bundle and to Dr. Ko's report at page 1 of that bundle. The report of Dr. Ian Nicholson, a plastic surgeon, appears with photographs at pages 2 to 8 of the hearsay bundle.

7. Dr. Loy testified that he operated on the second plaintiff (Annette) from 11 p.m. on the day of the accident to 1 a.m. on the following day. He also sutured and re-stitched the facial and leg injuries to ensure the least conspicuous scars. Annette was in hospital he said from 11th to 14th September 1985 and he saw her at his consulting rooms on 16th and 24th September 1985, 28th October 1985, and finally on 17th December 1988. He described a comminuted fracture as a bone fragmentation into usually 3 or 4 pieces, indicative of the force of impact. This he contrasted with the clean break which would result from a simple fall. A colles fracture is apparently a fracture at the wrist, roughly where a watch strap would be.

8. The doctor considered that the severity of the fracture would cause initial pain for 1 to 2 weeks after the operation, whereafter there would be hardly any pain. In that period the patient wore a cast, and hand or elbow movement would cause what the witness described as mild pain. The cast came off on 28th October 1985, and the doctor assessed the pain as very little at that stage, but suggested some stiffness was likely.

9. After removal of the cast, the doctor expected difficulty for several months before full function was assumed. This would cover simple daily routine such as washing, opening doors, and buttoning clothes. I note however that Annette has an uninjured hand, so difficulty would largely be confined to tasks requiring two hands.

10. Dr. Loy then discussed the click and ulnar deviation, which he said would occur when Annette turned her hand or slanted it down in a vertical plane towards her little finger. He demonstrated these movements for the court, and said they would always produce discomfort, with pain at their extreme ranges. He gave the example of fastening a bra strap as a situation where this would occur. The doctor ascribed the click to soft tissue or ligament damage, detectable only clinically and not on X-ray. He thought Annette would have pain carrying a full school bag and observed that her left hand grip had weakened. He suggested that symnastics, push ups and hockey would cause discomfort and perhaps tennis and typing also. He advised against gymnastics but said that Annette could continue hockey. He considered the disabilities to be permanent.

11. Dr. Loy proceeded to discuss what he described as Annette's loss of concentration and her consciousness of her scars. He had reached his conclusions from clinical observation as Annette did not volunteer information. The doctor said that Annette was withdrawn and introverted and judged that this was not her true self. He mentioned the psychological impact of the accident in this connection, but admitted that he did not know Annette before the accident.

12. In cross examination the witness agreed he did not specialise in mental health but pointed out his standing as a doctor of over 20 years. It became evident that he was assuming an expertise in matters of the mind to which he was not entitled. I have no hesitation in rejecting Dr. Loy's evidence in this context.

13. In his address, plaintiff's counsel mentioned the factor of mental anguish and the reluctance of Hong Kong people to seek psychiatric help. He emphasised the evidence of Annette's father as to her changed personality, and the horrific nature of the accident from the statement at pages 64 and 65 of the agreed bundle. Counsel suggested that this warranted increased damages, a proposition I must consider in some depth as his very general submissions are not reflected in the pleadings.

14. Pleadings are necessary to inform the other party of the nature of the claim and to provide a basis for assessing a payment into court. General damages are those arising in the normal course of events, which cannot therefore take a defendant by surprise. Special damages arise other than from the necessary consequences of the wrongful act. The former need not be specially pleaded; the latter should be. The categories are not closed, but must be considered in the particular circumstances and have regard to the likelihood of a defendant's surprise at trial.

15. Pain and suffering are classically aspects of general damages not requiring special pleading. The mental anguish of Annette is an element in her pain and suffering which may therefore warrant compensation, although it must here be distinguished from subsequent grief.

16. Where however mental anguish is presented as psychological damage and evidence of changed personality is adduced, compensation would fall under special damages. It should be pleaded as such and proved by the evidence of a medical expert in that field. Spittle v. Bunney [1988] 1 WLR 847, a case on remarkably similar facts, is ample authority were it needed that psychological damage calls for compensation. In that case however the damage was proved by two agreed psychological reports. Similarly, I myself awarded substantial damages in this category in Lau Ming Wah v. Yau Ka Fai and others (HCA 6171 of 1986), but again on the basis of a detailed psychiatric analysis.

17. Even were the psychological damage specially pleaded, it should also be proved by appropriate expert evidence. This has not been done, and I am not at large to find probabilities on the inexpert generalities adduced from Dr. Loy and Annette's father.

18. Hence I do not include an element of damages for psychological impairment in assessing Annette's pain and suffering. I accept Annette's mental anguish or nervous shock attendant on the accident, however compensation for this relates only to the immediate aftermath and cannot cover grief at her mother's death. In the context of the immediate post-accident situation, the shock or anguish is amply illustrated in Annette's police statement, in particular at page 41 of the agreed bundle.

19. I exclude from my comments in this context the question of Annette's scarring. This has been specially pleaded and I readily infer that it has and will continue to have a distressing effect. I deal with this in detail in due course.

20. Annette herself spoke of her injuries and mentioned a bump on the back of her head the size of a tennis ball. She said they took her to United Christian Hospital, where they stitched her thighs. I accept her evidence in this context when she said it "hurt extremely". She went on to say that she had an operation and felt pain both before and after it. She remained in hospital for a few days when she said her head was painful, her wrist not so much, and her thigh not at all. Further pain was experienced on 16th September when the facial stitches were removed.

21. Annette's sporting activities appear to be little diminished. She was a good witness and frankly said that she felt no pain from tennis even when she used two hands. She also still enjoyed swimming, and only volleyball was a loss to her, as she worried she may break her wrist. She had not however played volleyball before the accident.

22. Annette turned to her scars and said that she hated them. She had noticed friends and classmates talking about them. Cross examination elicited that she knew this from observing people whispering, whereafter others would tell her it concerned the scars. It followed that Annette preferred to wear jeans and was particularly conscious of the scars when she wore shorts for games.

23. I accept that the subjective view of scarring is a factor in assessing compensation, provided that the subjective view is reasonably related to the physical actualities. A court should carefully consider an apparently excessive reaction to a scar of minimal proportions, but will accept in its calculations a strong but natural personal aversion to a visible disfigurement. There are thus two factors in the scarring, the disfigurement itself and the victim's awareness of it in terms of diminished enjoyment of life.

24. Dr. Nicholson, at page 6 of the hearsay bundle, considered Annette's cosmetic impairment on 10th October 1988. He found a faint pale scar on the face, three noticeable scars on the inner left thigh near the knee, and a faint pale scar on the outer right thigh.

25. The left thigh scars have formed keloidal tissue, which the doctor thinks should improve. They will however remain noticeable and he suggests that their appearance may cause Annette concern as she grows older. His opinion is that plastic surgery will not lessen the degree of cosmetic disability.

26. The scars themselves are illustrated on pages 3, 4 and 5 of the hearsay bundle by photographs dated 10th October 1988. Page 3 shows the facial scar above the left eyebrow. This was described by Dr. Nicholson even then as faint and pale and in court it was not readily noticeable. It is nonetheless a facial scar and I accept that it will cause anxiety to a young girl.

27. At page 5 the scar to the right thigh is shown. This is relatively small, 7mm × 3mm according to Dr. Nicholson, and I give it only minor significance cosmetically.

28. Page 4 shows the scars on the left inner thigh from three different angles. They are ugly and noticeably keloidal. I am satisfied that their size and location would cause concern to a young girl and that this anxiety will probably continue for a number of years. I do however note that they are all above or at knee level and would only be visible when Annette was wearing a short skirt or sports or swimwear.

29. I expressly declined to view the thigh scars when Annette was giving evidence as the defence did not suggest that the photographs inadequately showed the current state of the scarring.

30. Outside Dr. Loy's venture into the psyche I accepted his evidence. This confirmed Annette's anxiety about her scars when the doctor said she preferred long pants and was reluctant to display the scarred areas.

31. In evaluating Annette's damages for pain, suffering and loss of amenities I note that the residual disability is minor and in her non-preferred hand. The scars I have considered separately and assess them as an indefinitely continuing factor both in themselves and in her subjective perception of them. I do however note a possibility of improvement. The pain from the accident and the operation was severe at times but not for very long. Residual discomfort is a minor factor.

32. I have considered the various cases to which counsel have kindly drawn my attention. I shall not analyse them as their varying facts and awards are useful only as general guidelines to injuries below the disablement categories considered in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.

33. Considering these cases with intervening inflation, allowing a further element of compensation for nervous shock but excluding the cosmetic factor, I award $65,000 for pain, suffering and loss of amenities.

34. I find the scarring, in particular to the left leg. sufficiently serious and identifiable to warrant a separate award reflecting both the disfigurement and Annette's resulting anxiety. I rely on Li Chim Ying v. Lam Sin Nam (HCA 3527 of 1984) and Li Soo Yee v. Ho Tak Cheung and others (HCA 11720 of 1982) for the principle of separate awards. Both those cases concerned scarring of far more serious proportions, resulting in separate awards of $80,000 and $100,000 respectively. The principle is not however diminished by the lesser gravity and I find a separate award of $20,000 to be appropriate. The total award for pain, suffering and loss of amenities will therefore be $85,000.There will also be an award of $23,634 for Annette's medical expenses and damaged clothing, pursuant to the schedule at page 53 of the pleadings bundle.

35. I decline Mr. Barretto's invitation to make an award for loss of earning capacity. Annette's background is one of wealth and her residual disability minimal. She is likely to enjoy tertiary education and I cannot envisage circumstances where the results of the accident may diminish her future earning capacity. Mr. Mumford's objection to the lack of pleading in that regard accordingly falls away, but I would not have considered a pleading necessary to support such general damages.

36. I turn to the death claims arising under both the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance, conventionally known as the FAO and LARCO claims. I shall first consider the LARCO claim of the deceased estate and make the usual award of $30,000 for loss of expectation of life. This was not contested.

37. Funeral expenses are particularised at page 25 of the pleadings bundle and are recoverable in principle under S. 20(2) (b) of LARCO. The quantum in the particular case is disputed insofar as the expenditure was substantially increased by the decision to fly the body to Singapore. The legislation is silent on the details of recoverable items and there is a scarcity of case law. Individual cases seem to have been decided on their own facts and background.

38. The deceased was a Singapore national and since her marriage had enjoyed a fairly rich life style. The claim includes air freight charges for the body and return air tickets for the husband, daughter and sister-in-law to attend the burial. The sister-in-law's travel was justified by Mr. Kwan, the widower, on the need to provide comfort for Annette at the funeral, and his own pre-occupation with the arrangements. Mr. Kwan said she was very close to Annette and was a mother figure at a time when he was very busy.

39. Further damages are claimed for overseas phone and fax charges incurred by Mr. Kwan's two brothers-in-law who came to Hong Kong from Singapore and incurred these charges in making funeral arrangements.

40. The crux of the issue is the expenditure consequent on holding the funeral in Singapore. The defence disputes neither the Hong Kong related expenditure, nor such of the Singapore expenditure as would anyway have arisen in Hong Kong.

41. Mr. Mumford for the defence directed me to two Australian cases, apparently the only judicial guidelines directly on the subject. Mr. Barreto for the plaintiffs relied on the propriety of a Singapore burial in view of the deceased's origins and her remaining family living there. He also cited the English case of Schneider v. Fisovitch [1960] 2QB 430.

42. Mr. Mumford's Australian cases are Public Trustee v. Bednarczyk and Tripodi v. Leonello. Both are from South Australia and have the respective references [1959] SASR 178 and 29 SASR (1981) 86.

43. The judge in Bednarczvk disallowed body removal expenses from South Australia to New South Wales on a claim for funeral expenses under apparently similar legislation.

44. In Tripodi v. Leonello, the judge disallowed removal expenses to Italy, claimed under the same legislation on the death of an Italian migrant.

45. In Mr. Barreto's case of Schneider, the issue concerned the personal injuries claim of an injured wife whose husband was also killed in the same accident. The claim was allowed in respect of necessary expenses of close relatives who flew to France to assist her to England and to make arrangements for transfer of the husband's body. This case does not therefore concern funeral expenses, but the recovery of damages found to be directly referable to the act of the tortfeasor. It does not assist counsel's argument.

46. The Australian cases are not of course binding. They are however directly on the point and illustrate that a plaintiff does not have a blank cheque even for expenditure entirely suitable to his personal circumstances.

47. Mr. Kwan mentioned his wife's family origins and the fact that Hong Kong was not his permanent home. I note however that the family had lived here for some 15 years, had bought a house here and enjoyed the earnings of a locally based business.

48. The issue is one of reasonableness in the context of the deceased's station in life and local circumstances at the time of death. Had the deceased been a Singapore resident on holiday in Hong Kong I would at least have regarded transportation of the remains as recoverable. She was however a Hong Kong resident of many years and it is not reasonable to expect the defendant to bear the expenses consequential on a Singapore funeral.

49. I am not persuaded otherwise by Gammell v. Wilson [1980] 2 All ER 557, where Megaw J. at first instance allowed the cost of taking a 15-year old boy's body from England to Ireland. The journey was much shorter, the point was not contested, and I distinguish the case of a child from that of an adult with roots in the place of the accident.

50. I therefore disallow the Singapore related funeral expenses, save insofar as they would anyway have occurred in Hong Kong. The cost of air freight, air tickets and overseas phone and fax charges are accordingly disallowed as relating to the Singapore funeral. The remaining Hong Kong expenses of $23,980 are awarded, also the Singapore expenses of burial registration and the gravestone, to which the defence does not object.

51. I have also considered the Singapore expenses described as "miscellaneous funeral expenses" and itemised at pages 105 to 113 of the agreed bundle. The claim is for S$2,604 and many of the items such as flowers and caskets would have arisen anyway. Some items I would not allow, such as the iced drinks and the bus service, but a round sum of S$2,000 roughly reflects the allowable items and that is awarded.

52. The total award for the funeral expenses is therefore $23,980 and S$7,420. There is a further uncontested award under special damages of $750 for damaged clothing and personal effects.

53. The LARCO claim for the lost years of prospective earnings is assessed on the likely income after deduction of outgoings, with the application of an appropriate multiplier. The simplicity of this concept is confounded in the present case by alarmingly different conclusions on applying the principle to the facts. The plaintiffs contend for some $3 million, whilst the defendants consider around $150,000 to be nearer the mark.

54. At her death, Jenny Kwan was a part time teacher earning $2,506 per month. Pages 128 to 134 of the agreed bundle contain a series of letters from her school, Munsang College, concerning her terms of service and post-accident remuneration had she lived.

55. There was evidence from Mr. Kwan that the deceased loved teaching and intended to practise her profession full time when Annette started secondary school. At page 134 of the agreed bundle, the acting Principal of the College indicates that she would certainly have been accepted full time if she had offered her services.

56. From this evidence I am asked by Mr. Barreto to find a probability that the deceased would indeed have commenced full time teaching from September 1988, when Annette commenced secondary school. I am further asked to find that as a full time teacher the deceased would have worked up to age 60 and earned a retirement gratuity. The figures for her full time pay and the formula for calculating her gratuity are provided at pages 128 to 134 of the agreed bundle.

57. I cannot accept the probabilities urged by Mr. Barreto. The deceased's life style was that of a wealthy woman who taught at least partly because the hours were convenient for taking Annette to and from school. She may have considered full time teaching but I do not find it probable that she would have actually done so, particularly for the 10 years necessary to accumulate a pension. Her full time teaching career amounted to only one year in 1971, where after she did not teach at all until 1980 when she resumed part time teaching. I find a probability that she would have continued part time teaching, but beyond that I would speculate.

58. Mr. Kwan testified that he gave the deceased a personal allowance of $5,000 per month and a household allowance of $10,000 per month, of which he suggested she would keep part. Mr. Barreto urges that the $5,000 allowance should be included in the deceased's income in calculating the lost years earnings.

59. Evidence of the deceased's spending habits is scant. The Ka Wah Bank account at pages 138 and 139 and the Hong Kong Bank account at pages 148 to 157 of the agreed bundle show mainly small amounts and some transfers between the accounts. The large amounts at page 139 in the Ka Wah account have been explained by Mr. Kwan as partly a gift and partly a trade-in credit when he bought his wife a new car. The Hong Kong Bank cheque counterfoils at pages 159 to 161 show individual outgoings between a few hundred and a few thousand over a year, mainly to shops, and totalling about $30,000.

60. Mr. Kwan said he sometimes made remittances to Singapore at his wife's request and would deduct the amounts from either of her allowances at his discretion. He also said she loved spending his money, but was very thrifty with her own money. Mr. Kwan's sister, Mrs. Woo, also gave evidence and described the deceased as extravagant, buying jewellery, fur coats, and watches.

61. A picture emerges of a wealthy woman given all she needed by her husband, who also allowed her the use of a supplementary American Express card. The Singapore remittances are unclear as to frequency or amount, and Mr. Kwan was unsure of the details appearing in the Singapore estate duty schedule at page 89 of the agreed bundle.

62. I am not prepared to find on the evidence that the $5,000 per month personal allowance was lost to the estate as a result of the death. I do however find it probable that the deceased used her allowance and the other facilities readily granted by an indulgent husband to cover all her personal needs. The effect of this is that I find a 100% free balance in respect of her part time salary as a school teacher. Mr. Kwan gave evidence which I accept that he paid his wife's relatively small income tax bill. Accordingly no deduction is made for that factor.

63. Mr. Barreto's remaining submission in calculating the lost years award concerned interest which would have accrued on the deceased's Hong Kong and Singapore bank accounts. He suggests that these total about $850,000 with the Singapore money converted at current rates.

64. I note at the outset that the Singapore dollar figure of S$213,073.95 includes S$100,000 said to be held by the deceased's brother on her account. Mr. Kwan's oral evidence is the only basis for this figure, as there are no supporting bank documents or letters from the brother. I would therefore have difficulty accepting its existence, assuming I were to allow the claim in principle.

65. Mr. Barreto suggests that the total figure of the deceased's investments should be deemed to attract interest at 10%, a high rate which would reflect her investment skills. The total monthly interest urged would be over $12,000 on counsel's arguments.

66. In Gammell v. Wilson [1982] AC 27, the House of Lords accepted that a plaintiff's claim for lost prospective earnings enured for his estate's benefit on his death. In essence therefore it is a living plaintiff's claim which survives his death and compensates his estate for what he can no longer earn.

67. Once that principle is grasped, it follows that funds which may loosely be described as unearned income are not affected by the death. The bank accounts existed before the death and attracted interest; they continue to exist and the estate continues to benefit. It is the personal inability of the plaintiff, deceased or otherwise, to earn his living which attracts the award for the lost years.

68. Accordingly I find counsel's submission as to interest wrong in principle and it is disallowed.

69. The deceased's salary as a part time teacher is therefore the basis for the lost years award, with a 100% free balance to reflect her husband's ample provision for her. Taking into account the accelerated receipt of benefits I apply a post-accident multiplier of 10, yielding the following figures on the data at pages 128, 129, 130 and 133 of the agreed bundle:

70. I now turn to the dependency claim under the Fatal Accidents Ordinance, particulars of which appear at paragraph 8A of the statement of claim, pages 26 and 27 of the pleadings bundle.

71. Further particulars were provided pursuant to the defendant's request and appear at pages 43 and 44 of the pleadings bundle. Essentially they reflect the services of a wife and mother, but include in particular the services of driver, housekeeper and tutor. This last function has not been pleaded but appears in Mr. Kwan's evidence and was urged in counsel's address. As it has the nature of general damages and has been particularised, I do not find the absence of pleading fatal.

72. The essence of the dependency claim is pecuniary loss which, since Berry v. Humm [1915] 1KB 627, includes the pecuniary value of gratuitous services likely to have continued but for the death. Mr. Kwan testified that his wife drove Annette to school every morning from their home in the New Territories and collected her in the afternoon. The distance was apparently some 12 miles each way. He also spoke of her daily coaching of Annette in her schoolwork and encouragement of extra-mural activities. He said he was out of Hong Kong on average once a month and depended on his wife totally to manage the household and take care of Annette. Thedeceased apparently did the shopping, supervised the daily meals and generally fulfilled every household duty of a wife. These then are the services of which the dependants, Mr. Kwan and Annette, have been deprived.

73. To compensate for the lost driving services Mr. Kwan said he engaged a chauffeur from the middle of September 1985 at $6,500 per month until middle September 1987. There is a small but unimportant discrepancy here from the pleaded conclusion of these full time services in August 1987. Thereafter Mr. Kwan said he employed the chauffeur part time at $4,000 per month until end August 1989, and from then another chauffeur at $2,800, who picked Annette up from school. The total claim to date of trial is $258,550.

74. There is no documentary evidence of the chauffeur's employment and Mr. Kwan said he did not complete the usual employer's tax returns. The chauffeur was a friend he said and a sometime employee in his shipping business. He did not complete the tax forms as the chauffeur would not have worked if he had to pay tax.

75. Mr. Mumford cast doubt on the credibility of Mr. Kwan's evidence and strongly resisted the need for a chauffeur even if he were found to have existed. He suggested that Annette could have used public transport to and from school, or at the most a taxi.

76. I accept Mr. Kwan's evidence that the chauffeur was employed. Despite his minor infringement of the tax laws he seemed an honest witness and his financial circumstances would hardly warrant his lying in this context. I do however find substance in Mr. Mumford's contention that the circumstances did not justify a full time chauffeur for Annette.

77. The family home was remote and I accept that public transport was not an alternative. Moreover, the driving services were actually provided by Annette's mother and legal entitlement to them is not a factor. Consequently the replacement services must merely be reasonable to the situation and not the most meagre that may be found. There was evidence that Annette's mother took her to parties and other social gatherings in addition to the school journeys, and I bear this in mind in assessing what is reasonable.

78. Considering all the circumstances, in particular the remoteness of the family home and the personal attention of the mother, I allow $2,000 a month for the chauffeuring services. This will cover both the full time and part time employment up to end August 1989, a period of 47½ Months giving an award of $95,000.

79. The family has now moved to Mr. Kwan's company flat in Braemar Hill as Annette is about to go to school in Australia. Mr. Kwan said he would not have contemplated this for another 3 to 4 years but for his wife's death. The date of the move does not appear, but I gather from the context that it co-incided with the employment of the new chauffeur at a lower salary. In the urban context a chauffeur is less necessary, but the driving remains a service lost to the dependants. In these circumstances I allow a reduced amount of $1,000 per month from end August 1989 to trial date, giving a further award of $3,300.

80. Annette will commence school in Australia in January 1990 and an alternative claim is particularised but not pleaded for expenses in this connection. The basis is the early departure to boarding school caused by the loss of her mother's services. Whilst I am prepared to accept the possibility of early departure, the cost of a good education is hardly a consequential loss on the death. It is probably too remote and is anyway largely a benefit. The net loss if any would be difficult to quantify whilst setting off such Hong Kong expenditure as would anyway have been incurred. These details have not been pleaded, particularised, nor given in evidence and I decline to speculate. I will in the circumstances presume a continuing necessity for Annette to have schooling in Hong Kong and award a further $1,000 per month for post-trial chauffeur expenses. A multiplier of 3 will be applied, giving a further award of $36,000.

81. Mr. Kwan said he employed a second maid from mid-September 1985 in order to provide personal care and attention for Annette, whom he considered vulnerable after the accident. As he travelled frequently, Annette would be alone in the house with the existing maid, who had her usual household duties. The second maid was well known to the family and was intended to provide a semblance of the mother's individual attention.

82. I have no doubt on the facts that this was justifiable and is a recoverable expense following Berry v. Humm. The quantum will be calculated on the cost of procuring and maintaining the servant in the household.

83. I accept counsel's submission that Filipino servants are an economical form of resident domestic help. The amount claimed of $2,000 per month for a 2-year contract is reasonable and is allowed. I also allow $1,816 claimed for two air tickets and $860 for agency fees in arranging the maid's employment. The total award for the maid's services for the period October 1985 to October 1987 is therefore $50,676.

84. Mrs. Kwan was a teacher by profession and evidently well regarded in that sphere. I accept the evidence of Mr. Kwan, Mrs. Woo and Annette herself that she devoted considerable time every day to coaching Annette and assisting with her homework. She also supplied the stimulus of good reading material, helped her with clothes shopping, looked after Annette when sick and generally ensured she spent enough time working.

85. These are valuable services in the formative life of a young girl and Mr. Kwan testified that he engaged tutors to attempt to compensate for the loss. He apparently paid $700 per month for tuition once a week when Annette was in primary 6, and engaged other tutors at particular times such as prior to examinations. These were senior students and charged around $80 to $100 an hour. The employment of tutors has not been pleaded and has been particularised only as an inference from the fact that the deceased mother herself tutored Annette. I have however allowed the evidence over Mr. Numford's objection, as the establishment of a dependency has the nature of general damages and the particulars relate only to quantifying the dependency.

86. Spittle v. Bunney [1988] 1WLR 847 was tragically similar to the present case, insofar as the mother was killed and the court evaluated the loss of her services. Croom-Johnson L.J. at page 854 discussed the respective merits of a nanny's wages and foster home charges as criteria to establish the value of the lost services. In that case, the unfortunate child was looked after by an aunt, so there was no direct purchase of substitute services to provide a guideline.

87. As in Hay v. Hughes [1973] 1 QB 790, the Court of Appeal in Spittle v. Bunney found it inconsequential that a nanny had not actually been employed. The issue was the evaluation of the mother's services lost to the child. The notional nanny in Hay v. Hughes was the pecuniary measure of the value of the mother's services.

88. The Court in Spittle v. Bunney took this a stage further in considering the changing needs of an orphaned child with the passage of time. Mr. Kwan's attitude seems to have reflected this approach as he evidently did not consider the second maid necessary after the 2-year contract. He did however employ tutors in substitution for the teaching services, which were growing in importance as Annette grew up, just as the simple domestic duties became less significant.

89. The notional nanny is not therefore the correct measure to assess the value of the lost services after October 1987. The $700 per month of the tutor may be relevant, but that merely represented tuition once a week shared with two others. Annette's mother did far more than that.

90. In Pegan v. Williamson [1976] 2 All ER 241, Watkins J. considered the extra value of a mother's services over and above the subsitute services which may be purchased on the market. At page 244, letter H, using words which could be applied to the present case, the judge said:

 

"So I begin the calculation of the figure of dependency with the sum of £12.50 per week. This, however, covers but a part of the loss of services. What about all those hours in the evening and during the weekends when no substitute service is available. In my judgment, they require to be taken into account. In so doing I recognise the difficulty of reaching conclusions without the assistance of clear guidelines. I am aware that there are good and bad mothers. It so happens that I am concerned with a woman who was a good wife and mother. I propose for the foregoing reasons to raise the dependency figure to £20 a week."

91. In evaluating the loss to Annette I must figuratively stand back and make a jury assessment. The daily tutoring services of a mother who is also a qualified and practising teacher must be high indeed. In addition to which are the extra hours which could not be purchased and which through both love and proximity a mother will give to her child. To say this is not to theorise, because that is exactly what happened in this particular case.

92. In applying a monthly figure for the value of the lost services I start with the tutor's $700 per month for one hour per week as a bare minimum. Upgrading this figure to reflect the daily hours and the extra quality of attention given by Annette's mother I find that $2,000 per month is the appropriate value. The coincidence between this figure and the maid's wages is no more than that.

93. I note that the lost teaching services were suffered from the date of death and not merely from the date when the maid's contract ended. I do however recognise the possibility of an overlap between the maid's actual services and the other lost services if the full amount were awarded from death. The full $2,000 should not therefore be awarded for the period of the maid's contract to avoid the element of double compensation in the area where the services merge. The award will accordingly be confined to the figure of $1,000 per month until the maid's departure; giving:-

94. Thereafter I assume a continuing need in Annette for her mother's services and a probability, in view of her family background, of tertiary education. The dependency will on this basis continue to 22 years of age. I do not make any allowance for Annette's possible departure to Australia in her late teens even if the accident had not happened. Her mother would have been available at home in the holidays and would no doubt have spent some time in Australia herself. The services may have changed in character over the years, may have evolved into a more sophisticated form of tuition and a more equal form of companionship, but they would have continued.

95. On this basis I apply a post-accident multiplier of 8 to the dependency, of which 3½ years have elapsed. The balance will give a post-trial award of:-

$2,000 × 12 × 4¾ = $114,000.

96. In his closing argument Mr. Mumford objected to the division of the deceased's services into categories, each of which had prompted the plaintiff to claim for the cost of an employee substitute. Whilst I have not fully followed Mr. Barreto's submissions in this regard, I have allowed separate elements of compensation to reflect the individual facets of the services lost. This is unavoidable if the deceased is an able and energetic wife and mother whose services reflect distinct aspects of the life within which she rendered them. Were it possible to find a maid who was also a chauffeur and a qualified teacher, it may have been simpler to employ her. It is unlikely however that such a talented person would have been available for domestic service. Were she available, she would probably have charged more than the combined allowances I have given for the individual elements of the services rendered.

97. I should briefly mention the possibility of Mr. Kwan's re-marriage. He is now 48 and has given evidence that be finds it difficult even 4 years after the accident to contemplate marrying again. There is evidently no immediate prospect and little more than a theoretical possibility thereafter. He is obviously greatly concerned with Annette's welfare and future and extremely busy in a profitable and demanding business. Given these factors, I have not felt it necessary to adjust the multiplier to reflect the possibility Mr. Kwan's remarrying soon enough to affect the provision of services to Annette.

98. The dependency award for the loss of services therefore totals:

99. The loss is that of Mr.Kwan in financial terms, even though the calculation is largely related to Annette's deprivation. This must be so where a husband remains alive and under an obligation to maintain his children. There have been suggestions to the contrary, confined to the loss of a mother's care, by Lord Edmund-Davies in Hay v. Hughes. These suggestions have not however attained judicial maturity and the award will accordingly be to Mr.Kwan.

100. Apart from the award for loss of services, I must consider whether any loss has accrued from the termination of the deceased's financial contribution to the family. She was earning $2,506 per month at her death and this, escalated at annual intervals, has formed the basis of the LARCO award.

101. Leaving aside for the moment the question of merger, I cannot see that there has been any loss of dependency. In cold financial terms Mr. Kwan is better off by the $5,000 per month allowance saved. He also allowed his wife unrestricted use of a supplementary American Express card and assumed she was saving something out of the monthly $10,000 household allowance. This expenditure was not quantified, but there has been ample evidence from Mr.Kwan and Mrs. Moo of the deceased's readiness to spend her husband's money. It is accordingly improbable that any strictly financial dependency has been lost through a lost contribution of the deceased's salary to the family coffers. There will not therefore be any further dependency award.

102. There remains for consideration the issue of merger between the LARCO and FAO awards. Prior to a spate of judicial decisions in the early 1980's, Davies v. Powell Duffryn Collieries [1942] AC 601 established that the FAO award would abate to the extent of the LARCO award.

103. This however was before the House of Lords in Gammell v. Wilson extended the recoverability of lost years damages to actions surviving on death for the benefit of the estate. Since the free balance of a deceased's earnings would inevitably exceed his contributions from earnings to family maintenance, the deduction of a LARCO award would always extinguish the dependency award where dependants were also beneficiaries.

104. Gammell v. Wilson was considered and applied in Hong Kong by the Court of Appeal in VSI Engineers (Hong Kong) Ltd. v. Yeung Wing [1981] HKLR 407. In considering the merger of the LARCO and dependency claims however, the Court approved the trial judge's approach that the lost years award should not be deducted from the dependency where the dependency claim had been included in calculating the lost earnings. In other words, a free balance for calculating lost earnings necessarily excluded the amounts allocated for maintenance of the family. These amounts were the dependency and were the subject of a separate and non-merging award.

105. This approach was disapproved by the Court of Appeal in Wong Sai Chuen deceased v. Tam Mei Chun [1983] HKLR 331 when Roberts C.J. disagreed with his own decision at first instance in VSL v. Yeung Wing. Accordingly it was re-emphasised that a free balance for the lost years was to be established by deducting only the deceased's own living expenses. His savings and his contributions to family maintenance were to form part of that free balance.

106. With this principle re-established, the logical basis for merger of the LARCO and FAO awards is clearly perceived. The LARCO award establishes a free balance and out of that free balance a financial dependency is created, giving rise to the FAO award. It would be an abundant injustice to a defendant to award the same amount twice in those cases where dependants were also beneficiaries under a will or intestacy.

107. In the present case we have a more unusual situation. The lost years claim is assessed on savings and goes to the estate. There is no financial contribution which may give rise to a dependency, as the deceased herself was supported by her husband. The family has however lost her services which have pecuniary value for assessment of compensation as a dependency claim.

108. The lost years award gives the estate an approximation of Jenny Kwan's savings which would have been received on her eventual death in the normal course of events. During her lifetime, and whilst she was accumulating those savings, she would also have been providing the services which have formed the basis of the dependency award.

109. Unlike a strictly financial dependency, the provision of the services was totally unrelated to whatever the deceased was able to earn and save. Similarly on her death, compensation for the dependency on her services should be unrelated to the notional savings by which her estate will benefit. I do not find this principle diminished by the co-incidence of beneficiary and dependant in one person, as he has suffered separate losses which could not have been funded from the same source.

110. To order a merger of the FAO and LARCO awards in such circumstances, when the dependency award would reduce to nil, would effectively deprive dependants of a remedy causally unconnected with their receipts as beneficiaries. I therefore find that there should not be merger of the awards.

111. I emphasise that this is an unusual situation. A woman amply supported by her husband will not usually choose to work. Correspondingly, a working woman will not usually render such comprehensive household services as the deceased. Here however the deceased was rich and still working and at the same time energetic and conscientious enough to provide considerable domestic services. These two aspects of a full life created separate benefits for beneficiaries and dependants alike and I find no injustice in awarding separate and cumulative compensation for their loss.

112. In conclusion, I will summarise the awards:

Personal injuries award

113. The 2nd plaintiff's general damages will carry interest at 2% per annum from the date of the accident to this hearing, and the special damages at 5% per annum for the same period.

114. There will be interest at 2% per annum from date of writ to this judgment on the award for loss of expectation of life. The balance will carry interest at 5% per annum from death to this hearing. For simplicity, this will apply equally to the award in Singapore dollars.

115. Mr. Kwan will receive the first $50,000 of the LARCO award plus half the remainder, the deceased being intestate. Annette will receive the other half of the balance, which will be invested for her benefit with the Registrar, Supreme Court until her majority. For the sake of clarity I order that these various portions are to be calculated after grossing up for interest at the respective rates as at the date of this judgment.

The FAO award

116. This award, which will be to Mr. Kwan alone, will carry interest at the rate of 5% from death to the date of this judgment.

117. There will be an order for costs to the plaintiff, with a certificate for counsel.