CHAN CHEUK HING AND ANOTHER v. ATTORNEY GENERAL AND OTHERS

---------------------

___________

JUDGMENT

___________

Sir Alan Huggins, V.-P. :

1. The Respondent appeals against an assessment of damages by Master Clay under the Law Amendment and Reform (Consolidation) Ordinance for the benefit of the estate of a girl who was aged 20 years at the time of her death on 23rd August 1981. In particular, objection is taken to the award in respect of the "lost years"

2. The Deceased was unmarried and was working as a student psychiatric nurse. She had passed all her hospital examinations but had still to sit the examination for the statutory qualification. She also had to do another six months' practical ward training for that qualification. The Master found that she was earning $1,800 p.m. as a student and that she would earn an average salary of $6,850 as a registered nurse from February 1982 to August 1988.He thought she would then have been promoted to Nursing Officer II and have remained in that grade for the rest of the lost years. He said that her pre-trial earnings would have amounted to $174,960 and her post-trial earnings to $1,436,490. He did not fully explain his calculations, but the first of those figures (which was inaccurately stated in the skeleton argument) was apparently agreed: see p.11 of the record. The second, also, could not have been arrived at on the basis of nine years at $10,825 p.m., as stated in the skeleton argument, but must have been on the basis of the monthly salaries set out at p.57 of the record, save that the Master found that $10,825 p. m. would have been paid for the whole of the period from September 1993 to August 1998. That makes total earnings as a Nursing Officer II of $1,114,920 and total post-trial earnings of $1,436,490, which was the figure adopted by the Master. He assessed the free balance at 65% (i.e. $933,718) and, after allowing for tax at 10%, awarded $840,346.

3. What is contended is that the overall assessment of the loss at $840,346 for the lost years is wholly unreasonable, and various reasons are suggested for what is said to be an exaggerated award. The first is that the Master treated his task as one solely of mathematical calculation and that he never stood back and considered whether the calculation had produced a figure which far exceeded any possible loss to the Deceased's estate. Whereas a common complaint in appeals against awards of damages is that the Judge has speculated, the complaint here is expressed to be that the Master did not speculate and lost sight of the object of the assessment, viz. the making of a fair estimate of the free balance as compensation for the loss incurred.

4. Before coming to the main thrust of his argument Mr. Feenstra contended that the Master was not justified in finding that the Deceased was likely to be promoted to Nursing Officer II 9.5 years after she started as a student, i.e. in August 1988. I am satisfied that there was evidence to support the finding. Mr. Raffel Chan, Head of the Government Teaching Department for Psychiatric Nurses, said that promotion to that grade was "reasonably automatic" and that between 1971 and 1983 those who were so promoted took an average of 9.4 years. He was acquainted with the Deceased and saw no reason why she should not have been promoted to that grade in the average length of time, although he could not forecast whether she would ever have reached the grade of Nursing Officer I. The Master was entitled to act upon that evidence. It is true that Mr. Chan's calculation was based upon the number of nurses who continued in the Nursing Service and made no allowance for those who, for one reason or another, fell by the wayside; nor, it is said, did the Master consider the possibility that the Deceased might have married and ceased to be a breadwinner - at least for a time. Mr. Feenstra contended that there was here a necessary basis for sex discrimination in relation to the assessment of damages. In some cases this contention might have. weight, but it does not compel us to interfere here. Of all occupations open to women nursing is probably the one least likely to be disrupted by marriage: it is a vocation and many nurses continue to work after marriage. The modern insistence on the grant of maternity leave reduces the chances that motherhood, also, will bring a woman's working life to an end, particularly in a territory where women are more generally expected to work after marriage and childbearing than in some Western countries. The other vicissitudes of life constituted only a minor factor and, although I would myself have discounted the total figure of earnings by a small amount, I am unable to say that the Master's conclusion was unreasonable.

5. The Master calculated that at the time of her death the Deceased was spending only 35% of her salary by way of "personal expenses". He saw no reason to think that she would spend a greater or a less proportion of her income on herself during the lost years. He therefore took 65% of the total post-trial earnings of $1,436,490 as free balance. Mr. Feenstra submits that the Master was in error in his calculation of the free balance at the time of her death and that, on the evidence of the Deceased's sister, she did not have a free balance of more than 61.6% or, on the evidence of the mother, of 55.55%. That particular calculation was not made the subject of a ground of appeal, and I do not think the point is open to the Appellant.

6. It is then said that to take the same ratio of expenses to free balance throughout the lost years, regardless of a substantially enhanced salary, was manifestly wrong: as the salary increased the expenses would gradually include items which had not previously been appropriate to the Deceased's standard of living. An example of this was that there might have come a point at which it was reasonable to expect that she would run a motor-car Whilst that is true, the cost of running the car could properly be regarded as an appropriate increase of the existing expense of travelling. I do not think it inevitably follows that a person becomes more self-indulgent as his earnings increase: he will spend more- and may live more comfortably but he will not ipso facto charge the whole balance of his expenditure. A stronger argument was that the Master did not consider the possibility that the Deceased might leave home and set up her own establishment, which would inevitably increase her personal expenses. -I am not sure that this possibility was canvassed before the Master: he does not mention it. The point seems to me to be valid and I would have made some allowance for it. The Master's failure to mention this factor has to be borne in mind when considering generally the free balance. of 65%. That figure is undoubtedly high, but I am not persuaded that it is so unusually high as to be unlikely to be consistent with reality. Mr. Mills-Owens has cited to us no less than nine cases where a free balance of 60% or more has been accepted.

7. In the result I am of opinion that we ought not to interfere with the Master's assessment and I would dismiss the appeal

Cons, J.A.:

8. I agree with my Lord the Vice President that the appeal should be dismissed.

9. The heart of the matter, as Mr. Feenstra put it when opening the appeal, is that the ratio of expenditure upon herself would inevitably have changed as the deceased became older and more affluent.

10. With every respect I find myself unable to accept that argument as such. It is inevitable that the pattern of life of the deceased would have changed as time went by, but how it would have done so is very much a matter for speculation. It may well be that in a few years, as the education needs of her brothers lessened or ceased, she would have reduced to some extent the proportion of her salary that she was contributing to the family when she died. It is also possible that - although the evidence inclines one to think of her as a "home bird" - her increasing finances might in time have tempted her to set up an establishment of her own, purchase a car perhaps and adapt to the life style, and expenses, of a completely independent career woman. In that case the free balance would of course have been seriously diminished. On the other hand she might instead have married and raised children on whom she would spend all of her own money. In that case the free balance would have extended to the whole of her income.

11. In Kowloon Motor Bus Co. Ltd. and Cheung Chi Shing v. Ng Kung (Administrator of the Estate of Ng Yuk Man, deceased) 1983 Civil Appeal No.7 (unreported), this Court indicated an acceptable approach to this almost impossible situation -

"But a judge in this sort of case may well, and we think properly, say to himself 'I am aware that I have to look to the future, but having regard to all the imponderables and uncertainties, I think that the only satisfactory course is to assess the damages on the basis of the position as at the date of death'."

12. The Master did not adopt this approach. He attempted instead to assess from the evidence the deceased's own intentions as to the future, and may perhaps be criticized for not looking far enough ahead. But in any event his figure of 65% free balance varies so slightly from the 62% which pertained as at the time of death that it would be wrong to interfere.

13. I agree too that the Master was entitled to accept that in all probability the deceased would have made Nursing Officer II in 9½ years.  There was nothing in the evidence to indicate otherwise, and ample to support the opinion of Mr. Raffel Chan.   As to the multiplier, no doubt records are kept somewhere from which could be ascertained the percentage of nurses who retire from the profession, either for good or for some shorter period, upon marriage. In the absence of such evidence I am inclined to think also that in the present circumstances the possibility of marriage by itself warrants no significant variation.

14. Interest rates in Hong Kong are at the moment accepted to be on the low side. The prime lending rate at 6% in August was the lowest it had been for almost 7 years. Even so, the rate of 9% is freely advertised for deposits of half a million or more on a long term basis. The total amount awarded to the family of the deceased would at that rate produce $7,711 per month tax free, a figure well above that which the deceased could have hoped to bring home until the expected promotion to Nurse II in September 1988. In addition the family can in all likelihood draw at least that. amount for so long as they wish without ever having to have recourse to the capital itself.

15. A similar argument was addressed to this Court in Peter Zee & Tung Bean etc. v. Yau Yat Shing & Another 1983 Civil Appeal No.59 (unreported) -

        "Counsel, however, sought to persuade us that we should find that the general levels of all multipliers were too high and should be reduced to figures which would not, as will happen in this case, produce a much larger income than the deceased was earning at the date of his death by reason of the high rates of interest which prevail at present, though the income from interest will fall far below the deceased's expected earnings from the date of trial onwards."

16. That was said in October 1983 when the prime lending rate averaged 15.8% and when the rates for fixed deposits must have been proportionately higher. Nevertheless this Court rejected the submission -

       "We decline to follow such a course, which would be against authority; and would introduce a new variable factor in the assessment of damages, if future movements in interest rates are to be guessed at."

17. The basic principles for the assessment of lost years' damages in claims brought under the law Amendment and Reform (Consolidation) Ordinance are now well settled. Their application may on occasion produce awards which appear inordinately high and which probably bear little relation to what could reasonably be expected to comprise the deceased's actual estate had he or she lived out a normal life span. That I think has happened here, but it is the fault of the law and not that of the Master below. Legislation is the only remedy, see eg. Gammell. v. Wilson [1982] A. C. 27, in particular at 65F and 72B, and has now, I understand, been recommended by the Law Reform Commission.

Fuad, J.A:

18. I agree that the appeal should be dismissed. I do not think it can fairly be said that the Master's assessment was wrong. He did not misapprehend the facts nor did he apply a wrong principle of law, It would not be right, in my opinion, for this Court to interfere.

3rd October 1985