TANG MEI YING AND ANOTHER v. LAM PAK CHIU AND ANOTHER

CACV 319/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 319 OF 1999

(ON APPEAL FROM HCPI 544/1998)

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J U D G M E N T

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Hon Rogers JA :

Introduction

1. This is an appeal from a judgment of Seagroatt J handed down on 16 April 1999. He had before him an action brought by the plaintiff on her own behalf and on behalf of her children and her parents-in-law as dependants and on behalf of the estate of her late husband.

2. The plaintiff's husband had been killed as a result of a fall from defective bamboo scaffolding in September 1995. Liability had been agreed between the parties and approved by the court, as to 85% on the part of the employers. Some of the heads of damage were also agreed but others including matters of dependency fell to be decided by the judge.

3. In this appeal, two of those matters have been brought into question. The first is the amount of HK$320,000 as loss of accumulation of wealth and the second is the amount of some HK$564,000 in respect of the widow's loss of earnings.

Loss of accumulation of wealth

4. The deceased earned a net monthly wage of $16,708. Of that, he would give his wife $8,000 per month. He would pay the rent and the utilities at about $1,632 per month and he gave his parents $2,000 per month. After taking into account a further approximately $1,000 which would be spent in different ways on the family, the judge found that he retained for his own use, including travelling, meals and so forth, about $4,000 per month.

5. The judge accepted the evidence that the deceased had a good consistent working record and also that, as the plaintiff described him, "he was a hard working responsible man with no wasteful vices". The wife was employed prior to her husband's death and earned something over $5,000 per month. She had managed to save $30,000 by the time of her husband's death.

6. It is noteworthy that there were two children in the family. One a daughter who was just about to start working when her father died and a son, who was, at the date of the trial, 10 years old and could be expected to start working in about 10 years' time. The judge said :-

"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."

7. The judge thus estimated that there would be approximately four years savings at a rate of $1,000 per month, a further four years savings at a rate of about $3,000 per month and two years savings at a rate of $6,000 per month. He then gave a discount.

8. Mr Sarony, SC, appearing on behalf of the appellant, made the point by reference to passages in the transcript where the plaintiff had been asked about her husband and his spending habits, that there was no indication that the husband had any propensity to frugality leading to savings. The frugality which was referred to in the evidence was a frugality which it was argued was in reality tantamount to not spending money on the family. The question that remained was where the deceased had spent the money which he had leftover at the end of each month. In summary, it was said that the deceased had shown no pattern of saving or investing in circumstances where it might be said that he should have had excess money each month which could have been saved.

9. These points which were made by the appellant are valid to an extent. Nevertheless, it must be appreciated that when estimates of spending are given, they are inevitably in round figures and inevitably will leave out incidental matters of expenditure which every person has in ordinary everyday life but may be difficult to justify or categorise on a simple basis. It could also be added that his savings bank book showed a higher amount spent on utilities than seems to have been used in the calculations.

10. 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.

11. 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.

12. 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.

13. We were tentatively invited by Mr Sarony to embark upon a full scale analysis of all the circumstances in relation to awards of loss of accumulation of wealth. Since this appeal was based upon the premise that there was no evidence of propensity to accumulate wealth, I do not consider that it would be an appropriate case to embark upon an analysis of all the criteria which the court should consider and the basis upon which a claim could be calculated. Indeed, it seems to me that there are so many imponderables that this matter should, as far as possible, be kept flexible.

The plaintiff's loss of earnings

14. After the death of her husband, the plaintiff found it necessary to give up her own employment and stay at home to look after her children, specifically her young son. This resulted from the fact that the deceased's parents and in particular, the deceased's mother, suffered depression and was unable to cope. Previously, the deceased's mother had looked after the children. Since her mother-in-law was now no longer able to look after the plaintiff's son, the plaintiff considered it was appropriate for her to give up her job to look after her son, but she was unable, at that stage, to find part-time employment which would fit in with her son's time-table.

15. The judge accepted both the fact that it was reasonable for the mother to look after her son rather than to employ a child minder and also that part-time employment was impossible to come by. The judge considered that the plaintiff's loss of her own income was recoverable in principle because it flowed from the death of her husband and the negligence which had caused it. The judge held that the plaintiff was unarguably within the defined relationship to the deceased. The basis of that finding was challenged in the court below and was challenged in this court. What is said is that the plaintiff's loss of earnings was not a claim which was recoverable either under the Fatal Accidents Ordinance, Cap.22 or under the Law Amendment and Reform (Consolidation) Ordinance, Cap.23. It is said that the claim under the Fatal Accidents Ordinance is a claim in respect of a dependency which may be brought under section 3 which reads :-

"If death is caused to any person ('the deceased') by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the deceased to maintain an action and recover damages in respect thereof, then subject to section 4(2) an action for damages may be brought for the benefit of the dependants of the deceased against the person who would have been liable in damages to the deceased in respect of that wrongful act, neglect or default."

Section 6(1) goes on to read :-

"In the action, such damages, other than damages for bereavement, may be awarded to dependants in such proportions as reflect their respective injuries as a result of the death."

16. The claim under the Law Amendment and Reform (Consolidation) Ordinance is one which survives the death of the deceased and is a claim which the deceased would otherwise have been entitled to make.

17. Any claim which may be made therefore by the plaintiff in respect of her loss of income following the death of her husband would, presumably, if maintainable, be a claim under the Fatal Accidents Ordinance. It appears to me, however, that the claim is not, on analysis, recoverable. The position was perhaps most succinctly put by Diplock LJ in the case of Malyon v. Plummer [1964] 1 QB 330 at 349. That was a case where a husband had been killed and the wife had previously been employed and paid by a one-man company which the husband ran. As a result of his death, that business was no longer effective and her income from that employment ceased. Lord Diplock referred to the Fatal Accidents Act 1846 which, for present purposes, has a similar effect to the Fatal Accidents Ordinance. He said :-

"It has, however, long been established, despite these wide words, first: that the pecuniary loss to the persons for whose benefit the action is brought is the only damage recoverable (see Blake v. Midland Railway Co.), and, secondly, that the pecuniary loss recoverable is limited to the loss of a benefit in money or money's worth which, if the deceased had survived, would have accrued to a person within the defined relationship to the deceased, and would have arisen from that relationship and not otherwise. (See the analysis of the cases in Burgess v. Florence Nightingale Hospital for Gentlewomen.)"

18. The judge, in that case, explained how the wife's income came from her work. Whereas she might be entitled to make a claim in respect of the amount which the income which she was actually paid as a result of working for her husband's company exceeded the amount which her services were worth, the balance, namely what might be regarded as a legitimate amount payable for her services was not something which was recoverable since she could still work.

19. Thus, on a narrow view, it seems to me that the plaintiff's claim for her loss of income could not be maintained because it is a loss of her income as a result of her giving up her own work.

20. Even, if one regarded the matter on a different footing and considered, as I think might be justifiable, that it was necessary for the plaintiff to give up her work so that her son would have a family member rather than a stranger looking after him, the claim is still not, in my view, recoverable.

21. Dependency in terms of what is recoverable under the Fatal Accidents Ordinance can be quantified both in terms of money and money's worth, in other words, services. If, as a result of the death, a dependent has lost services provided by the deceased, then the monetary cost of replacing those services may be recoverable. If the services were of such a personal nature that they could only be replaced by services of a personal nature such as family member replacing a family member in looking after a young child, then the cost of providing that family member might be quantified not on the basis of what it would cost for a child minder but what it would cost for the only available family member to give up their other employment. It would be a matter for the court to decide whether that was reasonable in the circumstances.

22. So far, there would be no difficulty in quantifying the plaintiff's claim on that basis. The difficulty, however, arises from the fact that it was not the deceased that provided the services of looking after the young child, but his mother. Such a claim would only be viable if it could be said that the deceased's mother's services in looking after the children were somehow a service or benefit which the deceased brought to the family. I doubt that that was so but even if it was, the question would then arise as to whether it was foreseeable that as a result of the husband's death, his mother would become so affected that she would be unable to provide her services in looking after the son. In my view, this is too remote a damage to be recoverable at law.

23. The question of recoverability of the damages based on injury caused by trauma or nervous shock were examined by the House of Lords in the case of McLoughlin v. O'Brian [1983] 1 AC 410. The matter was said to depend upon whether the nervous shock was reasonably foreseeable. Lord Wilberforce in his speech commencing at p.416 analysed the existing law in five numbered paragraphs starting at p.418D. In summary, they are as follows :-

1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for 'nervous shock' caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself.

2. A plaintiff may recover damages for 'nervous shock' brought on by injury caused not to him- or herself but to a near relative, or by the fear of such injury.

3. Subject to the next paragraph, there was no case in which a plaintiff had been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff.

4. An exception or an extension of the latter case had been where the plaintiff does not see or hear the incident but comes upon its immediate aftermath.

5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer.

24. Lord Wilberforce, in his analysis of the law, went on to say at p.422A that since "shock" is in its nature capable of affecting a very wide range of people, the law needs to place some limitation upon the extent of admissible claims. He went on :-

"It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties - of parent and child, or husband and wife - and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, ...

...

As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the 'nervous shock'. Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the 'aftermath' doctrine one who, from close proximity, comes very soon upon the scene should not be excluded. In my opinion, the result in Benson v. Lee [1972] V.R. 879 was correct and indeed inescapable. It was based, soundly, upon

'direct perception of some of the events which go to make up the accident as an entire event, and this includes ... the immediate aftermath ...'

...

Finally, and by way of reinforcement of 'aftermath' cases, I would accept, by analogy with 'rescue' situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene - normally a parent or a spouse - could be regarded as being within the scope of foresight and duty."

25. In that case, damages were awarded to a mother who had seen the appalling injuries inflicted upon her husband and children very soon after the accident when she went to a hospital and heard of the death of one of her children.

26. In this case, very little is known other than that the deceased's mother was so distressed she was unable to cope. Although she comes within the proximity of a close relative, there is no suggestion that she had any proximity to the accident nor is there any suggestion that she was affected other than by being told of the injury. In my view, the mother's disability resultant upon the distress caused by her son's death is not sufficiently proximate to the negligence and its result was not in law sufficiently reasonably foreseeable to be the subject matter of a claim in negligence brought either by the plaintiff in respect of the loss of services of the deceased's mother or even by the deceased's mother in her own right.

27. I have the greatest sympathy for the plaintiff in this case. She has lost her husband and she has no doubt acted in the best interests of her children in a most unselfish way. In broad terms, she has suffered the loss quantified by the judge as a result of her husband's death. Regrettably, however, I consider that the damage which has been caused is too remote in law to be recoverable in principle.

28. For these reasons, I consider that the appeal in respect of the loss of accumulation of wealth should be dismissed but the appeal insofar as it is based upon the plaintiff's loss of earnings has to be allowed.

Hon Ribeiro JA :

29. I agree and have nothing to add.

Hon Godfrey VP :

30. I agree with the judgment of Rogers JA; and, although we are differing from the judge on the matter of the plaintiff's loss of earnings from her own previous employment, there is nothing I wish to add.

31. In the result, we will allow the appeal on that point and dismiss it on the matter of the deceased's prospective "accumulation of wealth". As to costs, the appellant having succeeded on one issue in the appeal but having failed on the other, we will order (subject to the provisions of Order 42 rule 5B(6) of the Rules of the High Court) that the costs of the appellants of this appeal be taxed (if not agreed) and that one-half of those costs be paid by the respondent to the appellants.