WONG PO YING AND OTHERS v. LI SZE KWAI AND ANOTHER

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J U D G M E N T

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

1. On the 1st September 1986 Li Shui Yung, a truck driver, was killed when a cargo container toppled onto the cab of his truck as he waited to make a delivery at the wharf in Tsing Yi Island. He left behind a widow and a son and a daughter who were then respectively 3 and 1 years of age. The son sadly, is mentally retarded and institutionalised in the care of Caritas Medical Centre. He returns to his family only at weekends.

2. The Defendants, who were respectively the master and owner of the lighter from which the container toppled, accepted liability in negligence on the 16th May two years later. An inquiry as to damages was ordered, being held before Master O'Donnell on the 9th Septembe. He gave a reserved decision on the 16th, awarding a total of $880,364 damages with provisions for interest.

3. This is an appeal by the Defendants against that decision. It has been pleasantly, ably and fairly argued on both sides. We may say at once that we are not concerned with the awards for loss of expectation of life, funeral expenses or in any way with the question of interest. We may also observe that it had been agreed by counsel before the Master that a multiplier of 12½and a free balance of 64% as at the time of the accident would be appropriate in the circumstances and that these figures were adopted by the Master.

4. We turn initially to the earnings at the time of the accident. These were made up of a basic salary with an allowance and overtime payment. The allowance and overtime payment are matters of importance because, although they fluctuated to some extent from month to month, they were together usually only a little below, and sometimes above, the amount of basic salary.

5. In calculations submitted to the Master both counsel took $5,177.45 as the earnings at the date of the accident, that being an average of the total take-home pay for the previous 12 months. It may be noted that in the Particulars of Damage served upon the Defendants for the purposes of the hearing, the figure had been put at $5,429.55, that being an average for only the previous 6 months. With respect, this seems a more appropriate figure for, although as we mentioned allowances and overtime payments fluctuated, the basic salary did not, and the basic salary had been increased just 6 months before the death.

6. The Master did not accept $5,177.45. He took $6,064.50, the amount for the amount for the one month immediately prior to the accident. He did not give explicit reason why. He merely said -

"There appears to be no justification or authority to accept this lower starting point of $5,177.45 …"

7. With every respect to him, where there is constant fluctuation in two of the three component figures, there seems to be obvious justification for taking an average. However, in this case there is a peculiar feature which was not drawn to his attention but which Miss Mok, for the Plaintiff; has been at pains to emphasize, namely, that although there were fluctuations in both the allowance and the overtime f or each of the previous 6 months, in not one of those months was the total less than it had been in the previous month. To put it another way, there was a general, but not necessarily regular, upward curve in the take home payments. Furthermore the evidence of Mr. Chan, the assistant manager of the Company in which the deceased had worked, tended to support that, the curve continued after the date of the accident.

8. In that particular circumstance we are satisfied that there was in fact justification for taking the last month's earnings as the appropriate starting-point for calculations, we are therefore not disposed to accept Mr. Leong's invitation to interfere in this respect.

9. We turn then to the estimated earnings at the time of the trial. The Master found these to be $11,405. He came to that conclusion by a comparison with actual amounts received for the three months immediately preceding the hearing by two truck drivers employed by the same Company as the Defendant and who, on the evidence of Mr. Chan, the Master accepted as being in the sane situation and performing the same work to the same extent as the deceased would have been, had he lived.

10. This approach has been attacked in various ways, in particular by the suggestion that Mr. Chan was not really in a position to give reliable evidence as to that. We have been taken to the evidence of Mr. Chan, but with respect to Mr. Leong, we do not find anything therein to make us think that the Master's reliance upon his evidence was unjustified or that for any of the other criticisms raised against him his evidence should be treated as unreliable.

11. We turn then finally to the question of the free balance. We must say at once that this is the first occasion any of us can recall in which, presumably by an analogy to the separate assessment of pre-trial and post-trial earnings, the question of a separate post-trial free balance has been mooted. We do not, as at present advised, think it an approach to be encouraged. It seems to us to impose an unnecessary artificiality upon what in any event is inevitably already a very difficult problem.

12. As we indicated earlier, counsel advised the Master at the opening of the hearing that it was agreed that the free balance at the date of the accident should be 64%. It would seem to follow, from the submissions that were later made, that it was intended and accepted by the Master that this figure should apply up to the date of the trial. It is not clear how he was expected to proceed thereafter, but again it seems to follow from the submissions and from his judgment that he was to project that figure into the future with such variation, if any, as he thought the circumstances warranted. No evidence was called to assist him in this respect, nor was he informed what matters had been taken into account in arriving at the initial figure of 64%. This compounded the already unsatisfactory situation into which he had been put.

13. Miss Mok submitted to him, as she did to us, that the deceased being a good husband and a caring father would be likely to contribute more to the family as the children grew older and their expenses increased. She suggested therefore that the free balance should go up to 75%. The Master adopted a lower figure of 70%. He did not expressly accept Miss Mok's argument, but based his decision, so his judgment runs, upon three factors. Firstly, that the deceased had no bad habits and in particular that he did not indulge in gambling, secondly, that the deceased had accumulated a limited amount of savings, and thirdly the Master referred to the serious disability of the son.

14. With every respect to him, the first two factors can have no greater effect after trial than they did before. The disability of the son however may take on a different complexion, for when he reaches the age of 16 he will be discharged from the Caritas Medical Centre. His expenses thereafter may be considerably greater and might have caused the deceased to economise to some extent on his own expenses. That he would have done so, or even indeed that he would have needed to do so in the face of what are likely to have been considerably increased earnings on his part is to a large extent a matter of speculation. It would seem that the Master, doing the best that he could in the position to which he had been forced by the manner in which the case had been conducted, though that the deceased was likely have done so to the extent of 6%. We see no reason why we should interfere with that conclusion. We would only add that we draw comfort from the thought that in future masters will be decreasingly called upon to make decisions of this kind.

15. For these reasons we would refuse the appeal.