NG YAT YING AND ANOTHER v. LAW MING KWAN AND OTHERS

________________

J U D G M E N T

________________

Cons, V.-P. read the judgment of the Court:

1. This is an appeal against an assessment of damages in running down actions. On the 6th November 1974 a young family were knocked down as they crossed Queensway late one evening. The mother, who was carrying her 10 month old daughter on her back was killed outright. The father and daughter were extensively injured. Litigation naturally ensued. It was, to say the least, not hurried. Liability was only settled in 1983 and the assessment of damages not until June this year. In a very careful judgment Master Boa dealt with all the various heads of damage claimed in the twin actions. We need deal now with only those matters about which complaint is still made. One or two points raised by the Notice of Appeal have not been pursued, nor has the Respondent's notice.

General damages to the daughter

2. The injuries to the daughter, whom we repeat was then aged only ten months, were concussion with a fractured skull, a fracture of the right superior pubic ramus, a double fracture of the left tibia and fibula, and a fracture of the lower end of the right tibia and fibula. She was released from hospital some two months after the accident and made a splendid recovery. Earlier fears that she might have been affected mentally were dispelled, as were fears that she might have problems with delivery should she in later years become pregnant. At the worst she is advised to inform her obstetrician that there has been a history of pelvic damage. Otherwise there is no permanent impairment whatsoever.

3. The Master assessed damages for pain and suffering and loss of amenities at $65,000.

4. We have been referred by counsel to very many authorities which in one way or another might be said to be "broadly comparable"(1). No authority related to a baby as such, but it is accepted that under this particular head of damages the age of the patient is of little, if any, importance. Most of the authorities are now a few years old, but, by allowing for inflation at an average of 10% per annum, they can be seen to indicate a general level appropriate to the present instance. With respect to the Master he pitched his figure far too high. We substitute an award of $45,000.

Father's loss of pre-trial earnings

5. At the time of the accident the father had been a self-employed lorry driver. Due to his injuries he was unable to return to that employment until many years later, that is until September last year. In the meantime he managed to obtain various other jobs providing lower remuneration.

6. The Master assessed the father's loss under this head at $146,766.55. He arrivel at this figure by deducting actual earnings from potential earnings over the period in question. To discover the potential earnings he had taken the mean between what the father was actually earning at the time of the accident and what he was earning at the time of the trial, multiplying that figure by the number of months elapsed. As a figure for the time of accident earnings the Master accepted $1,200 per month, a figure relied upon by Mr. So, who appeared for the father then as he does now, in a schedule of danages which he submitted to the Master for consideration. We understand that that was the figure given to Mr. So by the father himself. However when it came to giving evidence the father merely said that he "earned about $1,000 per month". The only other references to his earnings are contained in the medical report of Dr. Wedderburn, datel the 12th May 1976, -

"     Prior to his accident he owned a van and earned between $1,000 and $1,200 a month."

and that of Dr. Philip Mao, dated 21st May 1987 -

At the time of the accident he was also a van driver, owning his own van but, in those days, he was making $1300 a month."

It may well be that the doctors obtained their information from the father himself, but if so, it must be remembered that the information was not given on oath. With respect to the Master he was in error to accept the unsupported figure of $1,200 per month and the damages under this head must be reduced accordingly. The correct figure is $132,666.55.

Father's loss of earning capacity

7. Mr. Ozorio, for the Defendants, has drawn our attention to Moeliker v. A. Reyrolle & Co. Ltd.(2) where Browne L.J. first defined this head of damages as "a plaintiff's loss of earning capacity where as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) had been diminished by his injury" and then suggested that "this head of damage generally only arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose his employment at sometime in the future ....." Later he remarked that the risk had to be "substantial".

8. Mr. Ozorio suggests that this is not so in the present instance, even the Master found that "the element of risk attending (the father) in his future at work must be small". So, must we observe, was his award, a mere $10,000. It may well be that other judges would not have thought the risk sufficient to merit any award at all. Nevertheless, we are not prepared to say that the Master was necessarily wrong to take the view that he did.

LARCO

9. A multiplier for the lost years had been agreed between counsel below at 16. In assessing the multiplicand the Master found as a matter of fact that the mother "was wholly supported by her husband and no significant personal expenses or contribution to family expenses came out of her earnings". He therefore based his award on the full value of what he accepted would have been her earnings, with no deduction of any kind. However when dealing subsequently with the award under the Fatal Accidents Ordinance he reduced the figures he had already assessed. He did so because, although the evidence of both the father and the mother's own father was to the effect that the mother gave her entire earnings to her parents, he did not think that was completely accurate. He said "She was doubtless a generous and considerate daughter but she must have kept something for herself."

10. Mr. Ozorio suggests that these differences indicate an inconsistency of thought in the Master, and that the LARCO award should be reduced to a similar extent. Mr. So however points out that the criteria for the two awards are not the same. The free balance with regard to the lost years is the deceased's net income less his or her personal expenses; but the award under the FAO claim is the amount of the dependency, i.e. what the dependent could be expected to have received from the deceased; it did not follow that because the mother did not give all her money to her parents, the balance had been spent by way of personal expenses; there was therefore no inconsistency in the judge's awards. With respect, we think that Mr. So's contention is correct.

11. In assessing the mother's probable earnings over the lost years the Master utilized the mean between the earnings at the date of the accident and what they would have been at the date of the trial. Evidence to this end was given by Mr. Fong, who had employed the mother. However the Master felt that Mr. Fong "exaggerated the productivity and potential earning capacity of the deceased", and further that some allowance had to be made for the exigencies of running a home with two children. He therefore made a reduction in the two basic figures. Taken as percentages of the whole the reductions were unequal. Mr. Ozorio again claims inconsistency and suggests a further reduction in the time of trial figure. The inconsistency could of course be equally corrected by a lesser deduction in the time of accident figure, which would mean that the Master's award was, if anything, too low. But in any event, with the number of imponderables inevitable in a calculation of this kind, we do not think the Master can be criticized for working in the simple figures that he did.

12. Finally in this respect the evidence of Mr. Fong as to the time of trial earnings was that "for the kind of work (the mother) did in 1974 she would be receiving now some $2,000 odd - $3,000 odd (i.e. for someone who worked as hard as she)." It is suggested that the judge ought not to have taken the upper figure of the bracket given. Presumably counsel would suggest a middle figure. We do not however think that the judge is necessarily bound to take that view. The assessment of the evidence, such as it, was a matter for him. We are not prepared to interfere.

Fatal Accidents Ordinance

13. The arguments in reduction of the award under this Ordinance are so closely linked with those under the LARCO awards that, the appeal having failed in that respect, it cannot succeed in this.

14. There remains however one more award with which we must deal. It appears in the Master's judgment under the title "Miscellaneous Special Damages", but it is conceded that it was claimed, and made, under LARCO.

15. When the daughter was discharged from hospital she was taken to live with her mother's parents. Due to his injuries the father was quite incapable of looking after her and the grandparents had already taken in his other child, who had not been involved in the accident. Even today the two children still live with their grandparents, the father having in the meantime remarried and started a second family. The $30,000 awarded under this head was in respect of payments which the father had made to the grandparents towards the children's upkeep and expenses.

16. Mr. So supports the claim by reference to Donnolly v. Joyce⁽³⁾, where an infant plaintiff was seeking to recover the wages lost by his mother in giving up part-time employment to look after him during his recovery. The defence that this was not the infant's loss, but that of someone else, was rejected by the Court on the ground that it was as much the infant's own loss as if he had had to spend a similar amount on the purchase of special medical equipment or nursing services. It is now suggested that if the mother in the instant case had not been killed, but injured to an extent that would have precluded her from looking after her own children, she would have been able to recover the cost of someone hired to do so on her behalf; the loss in this respect is therefore as much her own as that of the infant in Donnolly v. Joyce⁽³⁾ and should enure for the benefit of her estate.

17. It is an ingenious argument. Somehow it seems to extend the "lost years" principle to include "lost damages". But we do not have to deal with it as a matter of principle. A conclusive answer is to be found in the Ordinance itself. Section 20(2) provides -

"Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person -

(a) .............................

(b)     shall, where the death of that person has been caused by the act or omission which gives rise to the cause of action -

(i)      ............................

(ii)     not include any damages in respect of loss of ability to render services after his death;"

 

There should therefore have been no award of $30,000.

18. For these reasons we allow the appeal and reduce the damages awarded in the manner we have indicated.

(1) as per Diplock L.J. in Avery v. Miles, quoted in Li Ting lam v. Leung Kam Ming [1980] H.K.L.R. 657

(2) [1977] 1 W.L.R. 132

(3)[1974] 1 Q.B. 454