MADAM LEUNG YUET HAN AND ANOTHER v. LEE HEUNG TOI AND ANOTHER

Action No. 3549/82

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The plaintiff is the mother and administratrix of the estate of NG Kam-shing, who died intestate on the 1st December, 1980.

2. The plaintiff brings the action on behalf of the estate of the deceased under the Law Amendment and Reform Consolidation Ordinance (Cap. 23)("Larco") and on behalf of herself and another dependant under the Fatal Accidents Ordinance (Cap. 22)("Fao"). That other dependant, NG Yau, an aunt of the deceased, has since died.

3. At about 10.40 p.m. on the 1st December, 1980 the deceased was a passenger in a bus owned and operated by the second defendant and driven by the first defendant along Nathan Road, when it overturned while turning right into Waterloo Road. As a result of this accident the deceased  suffered fatal injuries.

4. At the outset of the hearing, Counsel for the first and second defendants admitted liability. The only issue left to the court is the assessment of the quantum of damages payable to the plaintiff.

5. According to the post-mortem report and the death certificate the deceased was aged 25.This is not in dispute. He was working for the Warhai Enterprises Ltd., a shipping company, having its offices in Connaught Road Central, as a shipping clerk. According to the evidence of Madam CHEN (P.W.1) who described herself as a non-shareholding director, this company was incorporated in 1979 and when she first joined it in the same year, it had only four employees. The deceased started working for the company in March, 1980 on a probationary period of three months. In 1980 the company had seven employees and this number has increased over the years to about 35 now. It is agreed that at the time of his death, the deceased was drawing a salary of $1,400.00 per month.

6. Two other items were also agreed : funeral expenses at $5,480.00 and loss of expectation of life at $20,000.00.

7. Miss Bridges (for the plaintiff) submitted that a multiplier of 16 was appropriate in this case. She referred to some cases cited in the table of multipliers in (1984) 1 HKLJ at pp. 121 - 123 and (1984) 2 HKLJ at pp. 276 -277.

8. Mr. Bleach (for the defendants) submitted that 16 is perhaps the highest multiplier that the courts have given, barring two cases where 17 and 18 were given. He said that the multiplier of 15 is normally given for the age 20,  but only where the court is satisfied that the deceased was an average ordinary man enjoying average health. He argued that in this case, the court has not been given the benefit, firstly, of any such pleading. Before I started delivering my judgment he conceded that he had been in error and such a fact is pleaded. Secondly, no attempt had been made of finding out about his health from his mother. He submitted that the lowest multiplier for people in the same age group is 12 or 13 where the victims are not the average man with average life expectancy.

9. I am not overlooking the comment made by learned Counsel for the defence when he described the figures suggested by Miss Bridges in her calculation of the other awards as "grossly exaggerated". He argued that if the award of $671,456.48 were to be made on the calculations of Miss Bridges, which were to be invested at compound interest of 10%, the monthly interest yield to the estate would be $5,600.00 for each month of the 16 years, at the end of which the estate would still be left with the capital intact.

10. In YEUNG Wing v. V.S.L. Engineers (Hong Kong) & Others, (1981) H.K.L.R. 130, ROBERTS, C. J. said at p. 133 :

"The general approach, as I understand it, is that the courts tend to follow the multiplier used in similar cases, unless there are special factors which suggest that the normal figure should not be adopted."

 

It is that general approach which I will endeavour to follow. Whereas it is true that no evidence was adduced as to the deceased's health, the fact that he was "in good health" was pleaded in the statement of claim. The defence contained the usual averment of a general denial of allegations which had not been specifically admitted. I am of the opinion that the burden is on the party which seeks to establish such special factors as will justify a lower multiplier. In so far as the issue of health is concerned, I am not persuaded that I should follow the submission made by Mr. Bleach.

11. With regard to his other argument, I think the answer is to be found in the case of Peter Zee & Tung Bean v. YAU Yat Shing & Another, Civil Appeal No. 59/83 C.A., where the defendants/appellants sought to persuade the Court to 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." There, the learned Chief Justice said :

"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 within one or two units, legal advisers can calculate the multiplier which a court will apply. It is recognized that it is a rough and ready measure, which takes no account of variations in interest rates. Sometimes it may have the effect of giving a deceased's estate, if interest rates are high, a larger income, without touching the capital, than the deceased was earning at his death. But it is well understood and has been approved in many cases in the House of Lords."

Keeping that recognition in mind, and considering the defence submissions, I do not find any special factors here. A multiplier of 16 does not seem to be out of line with the usual figure adopted for a man of 25 who can be expected to continue to work until about 65, and I think it is the appropriate one in this case.

12. As stated earlier, his earnings at the time of death were agreed at $1,400.00 per month. There is however dispute about his future earnings. It should be mentioned that Mr. Bleach was highly critical of the lack of particulars of the deceased's expected earnings, and about the discovery of certain documents which were handed to him on the day of the trial. He relied on the decision in WONG Yuk-chau and Another v. TANG Suk-yee, Daisy, (1983) H.K.L.R. 154 and the recent Practice Direction dated the 29th day of November, 1984. I allowed the statement of claim to be amended in this regard, and the amended particulars give the following figures which are exclusive of the annual bonus :

13. The evidence of the director of the Warhai Company (P.W.1) and of Miss LAU Fung-yi (P.W.2) of its Accounts Department who prepares the wage sheets of the employees is relevant in this regard. There are difference in the figures they mentioned, but the common denominator in their testimony is that those figures are based on what the man who replaced him, a Mr. WONG Ping-wai who was employed on 1st February, 1981, has since earned. For comparative purposes, I will set out the figures which were mentioned by both these witnesses :

Mr. Bleach submitted that these figures, particularly those mentioned by P.W.1, were greatly exaggerated. He referred to the letter dated 30th June 1983 which P.W.1 wrote to the Legal Aid Department, in which she gave the monthly earnings over the previous two and a half years as follows :

She explained under cross-examination that these figures represented the basic minimum salary which the deceased would have received. She said that at Christmas time the staff is given an increment as appreciation of their work, followed by a regular annual increment at the time of the Chinese New Year. I accept this explanation.

14. Considering this evidence and keeping in mind that P.W.1 was most unimpressive when it came to payments of overtime, I am inclined to accept the evidence of P.W.2 in so far as the earnings of the replacement, Mr. WONG, are concerned.

15. Mr. WONG was promoted to the rank of supervisor in August, 1983, a post which he still holds. P.W.1 said that had the deceased continued with her company he would have now been promoted to the post of Assistant Operational Manager, at a salary of $5,000.00. Mr. Bleach submitted that the Court was being urged to assume that this would have been so, there being no ground work for such assumption. He said that there was no evidence about the educational background of the deceased, his ability to deal not only with peers but subordinates, nor was there any comparison of the work which he had been doing with that of the top man. P.W.1 testified about her impression of the deceased during the nine months that he had been with the company. She said that he was very quiet and scary, that is, being afraid of doing things wrong. She had found him very hard-working, willing to learn more and volunteering always to work overtime and help solve problems. She said that he was a man of initiative and had set up a container control system. She had no hesitation in saying that he was a better worker compared with Mr. WONG who has to be told to do things. It was argued by the defence that the deceased, working as a shipping clerk in a newly incorporated company which then employed only five people, might well have been rapidly promoted but without the groundwork to which I have referred earlier, the Court "simply is not in a position to accede to the plaintiff's superficially attractive request that the deceased would have been promoted to the position that P.W.1 said."

16. There is no other evidence of the performance of the deceased or of his qualities. Although the assessment of P.W.1 was over a period of nine months only, it seems to me that, being wholly in charge of the company, she was in the unique position of being able to form an impression of the man that the deceased was. In so far as that part of her testimony is concerned she remained emphatic and did not waver. Having seen the performance of both the deceased and his replacement, Mr. WONG, I have no doubt that she was capable of comparing the two and she expressed her preference of the deceased as a better worker. There is nothing else before me which would persuade me to hold that the evidence of P.W.1 concerning the qualities of the deceased, his ability and his efficiency in his service is not worthy of belief or is in any way embellished or exaggerated. If Mr. WONG could be promoted as supervisor after a period of some two and a half years, I see no reason to doubt P.W.1's evidence as being improbable that a better worker would not have reached that stage in the promotional ladder earlier and a higher one by now. I accept the evidence of P.W.1 in this regard and find that the deceased's future earnings until the time of the trial would have been the same in terms of the evidence of P.W.2, and that he would by now have been an Assistant Operational Manager.

17. To that will have to be added the yearly bonus. P.W.1 said that when the company started the policy was to pay one month's salary as bonus, from 1983 onward it paid two months salary by way of bonus, but the company made provision for an additional half month's salary. Miss Bridges said that the plaintiff claimed bonus after 1983 of two months salary only.

18. I will therefore assess the loss of earnings as follows :

            a)     From the date of death until today - 53 months :

19. Coming now to the free balance, it is right to say that both sides saw the obvious difficulties which are not unique to this case. For starters, it is pleaded in the statement of claim that the deceased used to contribute $1,400.00 to the family which, as Mr. Bleach pointed out, was the whole of his salary. I agree that this could not possibly be true No attempt was made to amend this particular even after the mother's evidence that he contributed sometimes $1,000.00 and sometimes $1,200.00. But it is conceded that he did in fact contribute some part of his salary to his mother. She said that he had never brought any girl friend home. He did not spend money on music or tapes. He did not drink at home, and she agreed that she had no idea of his social life other than saying that he did not go out much. He bought his own clothes, and had only one meal - dinner - at home. I keep in mind that since 1982 the company started providing lunch and uniforms to its staff. The impression I formed of the deceased on the evidence of the mother was that of a young man who was frugal in habits and loyal to the family. If he took back some money from the plaintiff as she said, it is obvious that what he kept for himself was not sufficient. That stands to reason when one considers the return transportation daily from Fanling to Central. Miss Bridges submitted that even if his food expenses be assessed at $500.00, his living expenses would come to about $800.00, which all told is more than 50% of his income. She thought that it was more likely that the food expense was far less than $500.00. And she opined that his living expenses would be between 45% to 50%. This made her suggest that the approach made in the previous cases of taking the living expenses at 45% was eminently suitable.

20. Mr. Bleach relies on WONG Shu-wan v. YU Kwok-yau, Simon, C.A. No. 97/84 to submit that there is no conventional figure which can properly be adopted as the assumed free balance in every case. Here there is some evidence but it is deficient. However, if one were to take account of the transportation fares and the fact that the deceased took back some money from his mother, I am inclined to accept the estimate of Mr. Bleach of his contribution to the family of $800.00 as more realistic. He took only dinner at home, and if it is accepted that it is normal for an elder son to be "more expensive in other ways, for example, by consuming more power and eating more food", per learned Chief Justice in the case of YEUNG Wing (supra), then his maintenance must include a share in such household expenses as electricity, gas and food. I take $300.00 of his contribution of $800.00 as referrable to his upkeep. On this basis his living expenses work out at $900.00 a month, which is 64.28%. Mr. Bleach said that for a man of his position, who would contribute just enough to ensure that his mother was well off, the free balance would be a realistic 40%, and not 55%.  I would perhaps have gone for 40% had it not been that I do not consider that it takes into account the prospects of his marriage. The fact that he did not take any girl friends home is not conclusive that he had no girl friends at all or that his prospects of marriage were none. He was 25, in good health and with a bright future in his employment ahead of him. It is reasonable to say, I think, that with each promotion he would have tended to become more independent and would have tried to save a little more to cater for the eventuality of getting married. I am not inclined to think that in his circumstances the possibility that he would have married sometime in the future can be ignored completely. Doing the best I can, I am of the opinion that the free balance should be enhanced by 10%, to make it 50%.

21. There will be judgment for the plaintiff in the following sums :

22. There will be interest at the rate of 2% on the first item from the date of the service of the writ until today; and at the rate of on the second and third items from the date of accident until today.

23. I will now hear the parties on costs.

Order as to cost.

Order : In Cheeseman v. Bowaters Ltd. (1971) 3 All E.R. 513, DAVIES, L.J. said at p. 516 h :

""The extra £700 (approximately) which the judge awarded was in respect of these two other matters, the fourth period of being off work and the accelerated retirement, neither of which formed any part of the plaintiff's pleaded case. Counsel for the plaintiff sought valiantly to say that the defendants ought at any rate to have anticipated a claim in respect of the October - December being off work because they must have known that the plaintiff was off work. I am not sure really that there is much force in that contention; and of course there is nothing at all in the case which should have made them anticipate the claim in respect of the accelerated retirement. On the whole of the case I have come to the conclusion that the contention for the defendants is correct, i.e. that the judge ought to have made the standard order which is normally made when the plaintiff fails to recover as much as the amount in Court. It is true that this plaintiff did recover more; but, in the circumstances I have indicated, this was on a completely new case which necessitated one amendment and ought to have resulted in another amendment which was not made. Therefore in my view the judge should have made the usual order.''

 

KARMINSKI, L.J. had this to say at P. 517 b :

I would have made the same assessment of damages on the original particulars as was done by Mr. Bleach, which was less than the amount paid into Court. It is correct that a trial is conducted on pleadings, not on correspondence. Reading Cheeseman in the light of the decision of the Court of Appeal in WONG Yuk-chau (1983) H.K.L.R. 154, despite the equally valiant efforts of Miss Bridges, I am not satisfied that the explanation for the lack of particulars in the original statement of claim supplies sufficient ground for me to exercise my discretion in not making the usual order.

24. I order that the defendants will have costs after the payment in.