CHAN PAK TING v. CHAN CHI KUEN AND ANOTHER

HCPI 235/2011, HCPI 671/2007
& HCPI 228/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 235 OF 2011

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AND

PERSONAL INJURIES ACTION NO. 671 OF 2007

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AND

PERSONAL INJURIES ACTION NO. 228 OF 2010

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(HEARD TOGETHER)

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D E C I S I O N

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1. On 7 March 2012, the Privy Council in Simon v Helmot[1] upheld the decision of the Court of Appeal of Guernsey which held that the net rate of return in Guernsey, to be used to calculate the multiplier for future losses that were not earnings related, was 0.5%, and that the net rate of return for calculating earnings related elements of future losses was a negative rate of -1.5%. These rates of return resulted in substantially higher multipliers being adopted, and a substantial increase in the damages awarded, than multipliers adopted by reference to the assumed rate of return of 4.5%, which arises from the approach of the House of Lords in Cookson v Knowles[2] and followed by our Court of Appeal in Chan Pui Kee v Leung On[3]. Like Hong Kong, the law of damages for personal injuries in Guernsey is based on common law principles. Like Hong Kong, Guernsey does not have a Damages Act that enables the Lord Chancellor to fix the net rate of return.

2. The decision of the Privy Council in Simon v Helmot provided the impetus to the plaintiffs in the captioned actions to make application before me for leave to adduce actuarial and economic evidence to test whether the Cookson v Knowles assumption of a net rate of return of 4.5% remains valid in Hong Kong.  Similar applications were also made by the plaintiffs in HCPI 381/2011, HCPI 900/2011 and HCPI 664/2009.  I directed all the applications in all these cases to be heard before me on the 17 and 18 September 2012.  For various reasons, the plaintiffs in HCPI 381/2011, HCPI 900/2011 and HCPI 664/2009 decided not to participate at this hearing and to await my decision before proceeding further.

3. On 17 and 18 September 2012, I heard submissions from Mr Michael Ozorio SC, leading Ms Christina Lee for the plaintiff in HCPI 235/2011, and Mr Kumar Ramanathan SC, leading Mr Samuel Chan for the defendant in the same action.  Mr Ozorio SC also appeared for the plaintiffs in HCPI 671/2007 and HCPI 228/2010, as did Mr Ramanathan SC for the defendants in those actions.  After hearing submissions from senior counsel, I granted leave to the plainitffs to adduce actuarial and economic evidence.  I was persuaded that sufficient evidence had been adduced before me to demonstrate that there had been a substantial change in the economic landscape, since decision of the Court of Appeal in Chan Pui Kee v Leung On in 1996, such that I should permit economic evidence to be adduced to test whether the Cookson v Knowles assumption of a net rate of return of 4.5% remains valid today. 

4. I also make the following orders and directions:

(1)  There be a trial of the following preliminary issue in the captioned cases :

  Whether, having regard to economic developments from 1995 up to the present time, the Cookson v Knowles assumption of a net rate of return of 4.5% remains valid in Hong Kong and, if not, what is the net rate of return based upon which multipliers ought to be assessed and awarded.

(2)  Leave is granted to the parties to serve and adduce the expert report of Professor Chan Wai Sum (“Professor Chan”) and the defendants’ nominated expert (to be identified within 7 days) on the interpretation of historical data of the investment returns, net of inflation, of various investment vehicles from 1995 to date hereof and in that regard :

  (i)  there be a without prejudice meeting between the experts within 21 days (i.e. on or before 8 October 2012);

  (ii)  the experts prepare a signed joint report within 14 days (i.e. on or before 22 October 2012) thereafter setting out :

(a)  the investments vehicles that have been considered and the risks, if any, of investing in such vehicles;

(b)  the net rate of return of such investment vehicles from 1995 to date hereof and for the last 3 years, 5 years, 7 years, 10 years and 12 years;

(c)  the net rate of return of combinations of such investment vehicles from 1995 to date hereof and for the last 3 years, 5 years, 7 years, 10 years and 12 years;

  (iii)  the experts should set out in their joint report the areas on which they have a common opinion and the areas on which they disagree; and in respect of the latter, setting out the expert’s view on the area in question, his reasons in support of such view and his reasons for opposing the contrary view;

  (iv)  the experts should refrain from offering any opinion on future economic developments but may identify and refer to current economic conditions which may impact on future economic developments.

(3)  The trial of the preliminary issue shall take place before the PI Judge on 6 November 2012, 7 and 16 November 2012 also reserved.

(4)  The trial of HCPI 228/2010 be adjourned to commence on 8 November 2012 (8 days reserved).

(5)  There be a callover hearing before the PI Judge in Chambers on 30 October 2012 at 10 am (1 hour reserved).

(6)  Costs of this application reserved to be determined at the conclusion of the trial of the preliminary issue, with certificate for 2 counsel.

(7)  The plaintiffs’ own costs in HCPI 671/2007 and HCPI 228/2010 be taxed in accordance with the Legal Aid Regulations.

(8)  Liberty to apply.

The award of damages for future loss and expenses

5. The primary principle in the law of damages is that, in the case of torts, the court ought to assess an award of damages as would place the victim of the tort in the same position as he or she would have been had the tort not occurred.  In the case of pre-trial losses caused by the tort, this is fairly easy to accomplish and only requires proof, on a balance of probabilities, that the losses were sustained, and the expenses were reasonably incurred, as a result of the tort.  In the case of a tort that results in future loss and expenses, the trial judge must do his best to estimate the amount of that future loss and expenditure.  The desire for finality has produced a system of awarding damages which requires the trial judge to assess and award one lump sum representing the best estimation of these future losses and expenses.  The problem with this approach is that the future may unfold in a way that makes the lump sum award either too little or too much : too little, if, for example, the award is exhausted by increased expenditure; and too much, if, for example, the plaintiff’s actual life turns out to be much shorter than estimated at the time of trial.  These weaknesses in the system of lump sum awards prompted the Pearson Commission to propose, by a majority, in 1978 that the court should in general make their awards in the form of periodical payments in respect of future pecuinary loss caused by serious and lasting injury and that the periodical payments should be subject to later revision when there was a material change in circumstances[4].

6. This has now become a reality in the UK with the passage of section 2(1) of the Damages Act 1996 which was fortified by new provisions enacted by section 100 of the Court Act 2003.  In the UK, the courts are empowered to make periodical payments that last the actual life time of the injured plaintiff; the payments can vary in accordance with the rise (or fall) of retail price indices; and, in the case of periodical payments to cover the costs of future care, the periodical payments can be varied in accordance with earnings related inflation, which may rise at a higher rate than price inflation and which can be ascertained by reference to earnings data such as that provided by the “Annual Survey of Hours and Earnings : Occupational Earnings for Care Assistants and Homecarers”, commonly referred to as ASHE 6115.  The court may not make a periodical payment order unless it is satisfied that the continuity of payment is reasonably secure.  Whilst a Hong Kong court might, in future, be tempted to accept the invitation of Lord Clarke in Simon v Helmot[5] to develop the common law to provide for periodical payments, absent statutory intervention, the law of Hong Kong, as it now stands, is that the court must assess damages once and for all in a lump sum save in those cases that qualify for an award for provisional damages.

7. By reason of the fact that a lump sum award is made at the time of trial to compensate for a continuing stream of income, to be earned in the future, and a continuing stream of expenditure, to be incurred in the future, the law has developed a number of tools to assess the proper award to be made. 

8. The first and, probably, most important of these is the discount of the lump sum award that has to be made in respect of income and expenditure that would only arise in the future.  If, for example, the injured plaintiff has lost a stream of income of, say, $100 per year for the next 10 years, to award him a lump sum of $1,000 for this loss would be to over-compensate him.  Such an award would give the plaintiff a sum of money long before he would have been able to earn it, had the tort not occurred, a sum of money on which he could earn interest for that period of time before he could have earned it.  The approach adopted to avoid such over-compensation has been explained by Lord Oliver in Hodgson v Trapp[6]:

“Essentially what the court has to do is to calculate as best it can the sum of money which will on the one hand be adequate, by its capital and income, to provide annually for the injured person a sum equal to its estimated annual loss over the whole of the period during which that loss is likely to continue, but which, on the other hand, will not, at the end of that period, leave him in a better financial position than he would have been apart from the accident. Hence, the conventional approach is to assess the amount notionally required to be laid out in the purchase of an annuity which will provide the annual amount needed for the whole period of loss.”

Another explanation of this conventional approach has been provided by Lord Hope in Simon v Helmot:

“13. … The recurring annual amount has first to be determined. This is the multiplicand, to which a multiplier is then applied. It is the selection of the multiplier that lies at the heart of the dispute in this case. It has to take account of the period for which the loss can be expected to continue. If, as in this case, the injuries are of the maximum severity this will be the injured party’s life expectancy. But one then has to determine the interest rate which represents the return which can reasonably be expected on the lump sum, assuming that it is invested in such a way as to enable the whole amount of the loss to be met during the entire period by the expenditure of income together with capital. This is the critical stage in the exercise. The higher the interest rate the lower the number of years’ purchase that is required to calculate the capital value of the annuity.”

9. Prior to the decision of the House of Lords in Wells v Wells[7], the courts in England, and in Hong Kong, adopted a rate of return of 4.5%, net of tax[8] and inflation, to assess the appropriate multiplier to apply to the multiplicand to calculate the lump sum award.  They did so following the judgment of Lord Diplock in Cookson v Knowles[9]:

“In times of stable currency, the multipliers that were used by judges were appropriate to interest rates of 4% to 5% whether the judges using them were conscious of this or not. … The likelihood of continuing inflation after the date of trial should not affect either the figure for the [multiplicand] or the multiplier used. Inflation is taken off in a rough and ready way by the higher rates of interest obtainable as one of the consequences of it and no other practical basis of calculation has been suggested that is capable of dealing with so conjectural a factor with greater position.”

10. In addition to the discount for accelerated receipt that was applied by the selection of a multiplier, which was less than the number of years of future loss, to calculate the lump sum award, the courts applied a further discount on account of the general contingencies of life to cater for the possibility that the plaintiff would die earlier than expected, and to cater for the possibility that the plaintiff, for periods of time, would have ceased to earn as a result of ill health or loss of employment.  These contingencies have been described in various judgments as the “vicissitudes of life”

Chan Pui Ki v Leung On

11. This was the decision of the five-man Court of Appeal handed down on 19 July 1996[10].  I do not accept the submissions of Mr Ozorio SC that the exceptions to the principle of stare decisis permit me to depart from this judgment. I am clearly bound by the judgment which held that the actuarial and economic evidence that had been admitted by the trial judge had failed to prove or demonstrate that the assumption in Cookson v Knowles, that a lump sum award based on conventional multipliers would give the victim a real return of 4.5%, was wrong for Hong Kong.  The Court of Appeal reviewed the evidence received from Mr Philip T Wyatt whose company, Wyatt Co (Hong Kong) Ltd., had conducted annual surveys of retirement fund portfolios since 1983 and who gave evidence that, based on the medium annualized returns of 258 companies, the annual rate of return from 1983 to 1994 was 15.9%.  It was common ground that inflation between 1982 and 1994, as measured by the Consumer Price Index published by the Hong Kong Government, was annually 8.1%.  Deducting inflation at 8.1% from the return of 15.9% gave a net return of 7.8%, a figure comfortably above the assumed 4.5% in Cookson v Knowles.  Therefore, there was no basis to depart from the conventional multipliers, adopted by assuming a real rate of return of 4.5%, and to assess multipliers using a discount rate of 1.2%, which the trial judge had done. 

Wells v Wells and the Damages Act

12. The Court of Appeal in Chan Pui Ki v Leung On noted that there were no index-linked government securities (“IGLS”) available in Hong Kong, the inflation protected returns[11] from which influenced the decisions of a number of High Court judges in England to adopt the more modest discount rate of 3% (as was done by Collins J in Thomas v Brighton Health Authority[12] and by Dyson J in Page v Sheerness Steel Company Plc[13]).  The appeals from those cases reached the House of Lords, together with the appeal from Wells v Wells[14], in 1998.  On 16 July 1998, the House of Lords[15] upheld the decisions of the first instance judges holding that the injured plaintiff was not in the same position as an ordinary prudent investor and was entitled to the greater security and certainty achieved by investment in index-linked government securities in respect of which the then current net discount rate[16] was 3%, and that 3% should be used as the guideline rate until such time as the Lord Chancellor specified a new rate under section 1 of the Damages Act 1996.  That was done by the Lord Chancellor on 27 July 2001 who, guided by the principles laid down in Wells v Wells, set the rate at 2.5% by having regard to the average gross redemption yield on ILGS for the 3 years leading up to June 2001. 

The changing economic landscape

13. Since the decision of the Court of Appeal in Chan Pui Ki v Leung On in 1996, Hong Kong has been buffeted by the turbulent winds of financial storms on more than one occasion, including the Asian crisis in 1998, the effect of SARS in 2003, and the worldwide financial crisis of October 2008.  The economic evidence reviewed by the Law Lords in Simon v Helmot and the recent consultation exercise undertaken by the Ministry of Justice on how the discount rate should be set (or rather, reset) provide graphic examples of the substantial and continuing worldwide impact of the financial crisis of 2008. At the time that the economic evidence was being received by the courts in Guernsey in 2009, the yield from UK ILGS to a Guernsey resident, net of tax, had dropped to 1%.  Although the UK ILGS return was inflation protected, as inflation was 0.5% higher in Guernsey than in the UK, the net rate of return for a Guernsey resident on UK ILGS was only 0.5%.  The evidence of the economist, which was accepted, was that earnings related inflation was even higher than price inflation, running about 2% higher than the latter.  This factor reduced the net rate of return to a negative -1.5%.  In the Consultation Paper issued by the Ministry of Justice in 2012, the discount rate based on a 3-year moving average of ILGS yields (pre-tax and rounded to the nearest 0.1 pp) had dropped from 1.8% in November 2005 to 0.2% in May 2012.  If the discount rate was to be based solely on the yields from ILGS, then there would need to be a substantial reduction of the discount rate of 2.5% set in 2001, which remains the rate in the UK today.  The consultation exercise, which began on 1 August 2012 and would end on 23 October 2012, sought views on whether the discount rate should be set using an ILGS-based methodology applied to current data or whether there should be a move from an ILGS-based calculation to one based on a mixed portfolio of appropriate investments.

The reports of Professor Chan Wai Sum dated 25 September 2011 and 13 September 2012

14. For the purpose of the current application, I received into evidence three expert reports prepared by Professor Chan of the Department of Finance of the Chinese University.  The first one, dated 25 September 2011, was prepared for the plaintiff in HCPI 235/2011.  The two later reports, both dated 13 September 2012, were prepared for the plaintiffs in the other two cases.  The reports are in similar terms with the exception that the later reports contained updated economic information.  At the hearing of these applications, an updated, and improved, table of the annual return, net of inflation, from a wide range of different investment vehicles available in Hong Kong was produced by Professor Chan and which I replicate here :

Apart from a positive return, net of inflation, of 6.55%, from 2002-2012, on investment on the Hang Seng Index, and of 5.58%, from 2009-2012, on the same investment, all other 10-year returns were substantially below 4.5%. The returns, on the other investments, for the period of 10 years from 2002-2012 ranged from 2.9%, being the return obtained by taking the MPF internal fund rate, to 0.89% on savings deposits.  All returns were in negative territory on all these investment vehicles, if only the period of 3 years from 2009-2012 was considered.  Notwithstanding that the defendants sought to counter this evidence by referring to a report prepared by Professor Wilson HS Tong showing a real rate of return, net of inflation, on investments in the Tracker Fund (which is comprised of Hang Seng Index stocks), of an average of 11% from 2000-2012[17], I am satisfied on the evidence that there has been a substantial change in the economic landscape, since the decision of the Court of Appeal in Chan Pui Ki v Leung On in 1996, such that I should permit economic evidence to be adduced to test whether the Cookson v Knowles assumption of a net rate of return of 4.5% remains valid today.

15. In reaching this conclusion, I am aware of the restriction imposed on me by the decision of the Court of Appeal in Chan Pui Ki v Leung On and by the judgment of Litton VP who said:

“Now that the issue has been resolved by our judgment, there should be few occasions in the future when such expert evidence would still be necessary.”[18]

He held that, as a test case, it was legitimate to put expert evidence before the judge in order to prove the validity of the Cookson v Knowles assumption in Hong Kong and that:

“Experts, be they economists, accountants or other professional persons, can of course testify in a court of law as to past events, and their views and opinions can sometimes be helpful in assisting the court in interpreting data. Thus, it was perfectly proper for the judge to receive evidence from Mr Wyatt with regard to Hong Kong’s economic development over the past decade or so, and to allow into evidence what has been called the MIP (the Wyatt measurement of investment performance) as a rough and ready guide to investment returns for the past 12 years or so. The object of such evidence – the only legitimate object - was to test the validity of the basic Cookson v Knowles assumption in the Hong Kong context.”[19]

16. Just as it was proper to adduce that evidence before Cheung J, as he then was, in a test case, it is proper to adduce such evidence before me in these “re-test” cases.  Our Hong Kong dollar peg to the US dollar and the abnormally low interest rate regime that has prevailed, and still prevails, in the US and which is replicated, by reason of the peg, in Hong Kong, have made a substantial impact on investment returns in Hong Kong, as amply demonstrated in the table produced by Professor Chan.  The irony is that the same peg and depressed interest rates have sent our property prices skyrocketing and out of reach of those without sufficient capital reserves.

17. I also quote and rely upon the speech of Lord Dyson in Simon v Helmot who said:

“106. It is important not to lose sight of the fundamental principle that a claimant is entitled to full compensation and that the duty on the court is to do its best, using all tools that are available to it, to achieve that end. Before the advent of the ILGS, the courts were unwilling to take account of expert evidence about future economic trends because (i) it was too uncertain, (ii) it would be likely to involve the use of contentious expert evidence which itself was undesirable, and (iii) inflation was sufficiently taken care of by assuming that lump sums would be prudently invested. The arrival of ILGS gave the courts a better and more precise way of taking inflation into account and the result was Wells. But as I have said, the solution propounded in Wells was not set in stone pending a decision by the Lord Chancellor. It would require a ‘marked change in economic circumstances’ before the debate could be reopened. The only way in which such a change in circumstances could be proved to a court would be by expert evidence, almost certainly from an economist. In other words, the House of Lords recognised that it might be possible to persuade a court that the principle of full compensation would be better satisfied by adopting a different discount rate from that adopted in Wells.”

There is sufficient evidence before me of a substantial change in circumstances since the decision in Chan Pui Ki v Leung On such that I should permit economic evidence to be adduced with a view to persuade me that the principle of full compensation would be better satisfied by adopting a different discount rate from that adopted in Cookson v Knowles and in Chan Pui Ki v Leung On.

My directions on the scope of expert evidence

18. I directed that:

(ii)  the experts prepare a signed joint report within 14 days (i.e. on or before 22 October 2012) thereafter setting out :

(a)  the investments vehicles that have been considered and the risks, if any, of investing in such vehicles;

(b)  the net rate of return of such investment vehicles from 1995 to date hereof and for the last 3 years, 5 years, 7 years, 10 years and 12 years;

(c)  the net rate of return of combinations of such investment vehicles from 1995 to date hereof and for the last 3 years, 5 years, 7 years, 10 years and 12 years;

and that:

(v)  the experts should refrain from offering any opinion on future economic developments but may identify and refer to current economic conditions which may impact on future economic developments.

19. The choice of investment vehicles and the period of time over which their performance is being reviewed are critical factors that will affect the net rate of return.  As was also made clear in Simon v Helmot, the net rate of return may be different if payroll inflation, instead of price inflation, is taken into account.  By way of clarification and elaboration of my direction, I hereby direct that the experts ought to ascertain the net rate of return of the investment vehicles, and combinations of investment vehicles, firstly, by taking into account price inflation and, secondly, by taking into account payroll inflation, over the relevant period being considered.  Whether or not I can have regard to the latter at the trial of the preliminary issue would depend on the extent, if any, to which I am bound by the observations of the Court of Appeal on the relevance of payroll inflation[20].

20. The second direction referred to above pays heed to the decision in Chan Pui Ki v Leung On[21],following the observations of Lord Oliver in Hodgson v Trapp[22],that expert opinion on future economic developments is inadmissible because “to assess the probabilities of future political economic and fiscal policies requires not the services of an actuary or an accountant but those of a prophet”.

Actuarial Evidence

21. As equally important, if not more so, as the application to adduce economic evidence, was the application to adduce actuarial evidence in the form of multiplier tables contained in the Personal Injury Tables Hong Kong 2005 (as extracted and contained in Appendix 4 of Professor Chan’s 1^st report) and the soon-to-be published Personal Injury Tables Hong Kong 2012 (as extracted and contained in Appendix 4B of Professor Chan’s later reports).  The application to adduce these actuarial multiplier tables, which I have called the Chan Tables[23], was not opposed. 

22. Judges in England, and in Hong Kong, have built up a considerable body of case law in which, whether unwittingly or not, they have adopted multipliers to cater for various periods of future loss based on an assumed rate of return of 4.5% net of inflation.  These case precedents can be found in the earlier editions of the Hong Kong Law Journal and in the Hong Kong Law Reports and Digests.  They were compiled into a table of multiplier precedents, firstly, by Mr Victor Gidwani when he was a pupil of Mr Ozorio SC in my former chambers, and his good work was later continued by Mr Norman Hui, also a pupil in my former chambers.  Their work has been further updated and now appears in Personal Injury Tables Hong Kong 2005[24] and, no doubt, will be further updated and reappear in the soon-to-be published Personal Injury Tables Hong Kong 2012.  Notwithstanding this large body of case law containing multiplier comparables, attempts were made, as early as the 1960s, in the courts of England to discard the judicial method of assessing the multiplier in favour of an actuarial calculation based upon the capital value of an annuity of an amount equal to the figure of annual earnings lost, or expenses to be incurred, for a period equal to the estimated length of the working life (in the case of lost earnings) and expectation of life (in the case of lifelong expenses) of the plaintiff.  In 1971, in a test case in Mitchell v Mulholland (No.2)[25], the Court of Appeal refused to replace the convention method of assessment with the actuarial method, following the judgment of Lord Pearson in Taylor v O’Connor in which he said :

“I do not think that actuarial tables or actuarial evidence should be used as the primary basis of assessment. There are too many variables and there are too many conjectural decisions to be made before selecting the tables to be used. There will be a false appearance of accuracy and precision in the sphere where conjectural estimates have to form a large part. The experience of practitioners and judges in applying the normal method is the best primary basis for making assessments.”[26]

23. Objections that have been raised against actuarial evidence, and actuarial tables, include objections that such tables may not be appropriate for the particular plaintiff and that they make no discount for contingencies.  Notwithstanding their rejection as the primary method of assessment, they were not rejected entirely but “may to a limited degree provide the judge with a means of cross-checking his calculations, and in arriving at the appropriate multiplier”[27].  The practice of using actuarial tables as a cross-check of the multipliers adopted by the courts started from that time.

24. In defence of actuarial evidence, Mr J H Prevett, a Fellow of the Institute of Actuaries, gave the following explanation[28] of the application of the theory of probabilties to the problem of the assessment of damages :

“Actuarial calculations are based on the validity attaching to the theory of probabilities or the probabilistic approach and it may be of assistance to give an explanation of the significance and working of that theory. It is an essential element in the proper understanding of how actuarial evidence can assist the assessment of damages in any particular case.

The association of a survival probability and a rate of discount lies at the root of the actuary’s technique of arriving at a ‘present value’. Ideally, the actuary turns to statistics of the experience of a class of lives identical in material character to the individual for whom a lump-sum payment equal in value to a series of annual payment falls to be assessed. He then determines from these statistics the probability that the individual will survive to receive each future annual payment, multiplies this by the appropriate amount of the payment and discounts to allow for the rate of interest to the present time. By applying this technique to each future payment and summing the results he produces an overall total which gives the amount of the assessment. The probability of survival can be calculated to allow not only for mortality, but also for early retirement for reasons of ill-health, sickness and other ‘incidentals’.

It matters not that only one individual is to receive the amount of the assessment or that he may die the next day, or for that matter live to be a centenarian. So far as that individual is concerned, at the date of assessment, he is awarded fair compensation in the sense that if there had been a very large number of similar individuals of the same age all receiving the same amount, then overall they would have equated to the stated payments, allowing for the operation in due time of compound interest and mortality. Another way of expressing this concept is to say that if this very large number of individuals made a pool investment of the total of the identical amounts awarded to each at an investment yield equal to the interest rate assumed by the actuary for discount purposes, and if each received from the pool for the remainder of his lifetime the annual loss for which he had been compensated by recourse to both interest and (to the extent necessary) capital, then the total investment would be exhausted on the death of the last survivor provided that the mortality of the group followed the assumed pattern.

...

Nor are the theories of probability and present value invalidated by the situation – very common in practice – that statistics for an identical group of lives do not exist. In practice it is necessary, more often than not, to proceed from the known to the unknown, to the determination of probabilities suitable to a particular risk, using material that is the best available to do the job. The whole of the actuary’s training and experience is devoted to bridging this gap – to the choice of the most suitable statistics and, above all, to their application and adjustment to the circumstances of a particular situation, as they are seen to be at a particular moment of time. His opinion of the assessment in an individual case is therefore that of a professional expert skilled in this very art. Moreover, to discard his opinion on the grounds that precisely relevant statistics are not available would be to deny the usefulness of a technique that lies at the root of innumerable commercial transactions that are taking place daily.

The difficulties which judges and lawyers generally have experienced in interpreting actuarial evidence and appreciating the assistance which it can give no doubt largely explain the reluctance of those advising litigants to instruct an actuary.”

25. The seeds of change were sown in 1984 when a working party, under the chairmanship of Sir Michael Ogden QC and consisting of representatives of actuarial associations and English and Scottish lawyers, including the Government Actuary who was a member of the working party as a nominee of his professional association, produced their report which contained a number of valuable actuarial tables produced by the Government Actuary (which later came to be known as the Ogden Tables).  These tables were calculated by applying the “whole life annuity” principle and they made allowance for mortality year by year.  There were 3 groups of tables, one group of tables for loss starting immediately and continuing for the rest of life; another group of tables for loss of earnings up to normal retirement age of 60, or 65; and a third group of tables setting out the value of pension starting at retirement age of either 60, or 65 (and which required a double calculation, namely, the value of a whole life annuity calculated at notional retirement age, and a second calculation which was to reduce that value to present value by discounting for acelerated receipt).  Within the 3 groups of tables were separate tables for men and for women because of their different life expectancies.  A second and much expanded edition of the Ogden Tables appeared in 1994 and later editions have appeared since then incorporating the latest statistics on life expectancy.  The latest edition, published on 10 October 2011, is available on the internet.[29] As the years passed, the Ogden Tables gained wider acceptance and were cited more frequently in the courts.  In April 1994, Lord Bridge accepted in Hunt v Severs[30] that the former practice had changed and that actuarial tables were featuring more prominently in the evidence on which courts relied. 

26. The decision in Wells v Wells was important, not only because it lowered the discount rate from the conventional 4.5% to 3%, but also because of the whole-hearted acceptance of the Ogden Tables.  Referring to a continuing hesitation to embrace the actuarial tables, Lord Lloyd said:

“I do not suggest that the judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as the starting-point, rather than a check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to ‘a spread of multipliers in comparable cases’, especially when the multipliers were fixed before actuarial tables were widely used.”[31]

27. Referring to the change of practice made by the House of Lords in Wells v Wells in relation to the reception of actuarial tables, the authors of Expert Evidence : Law and Practice, 3^rd Edition observed[32] :

“Paradoxically, while this might be thought to have led to a surge in the actuarial evidence before the courts, this has not happened. The strict position is that the Ogden Tables should be proved by an expert (such as an actuary or an accountant). However, it is routine practice that the Ogden Tables are admitted into evidence by agreement. Indeed, so commonplace has their admission become that it is thought that any party who objected to this practice would be seriously penalised in costs. It therefore remains the case that the evidence of actuaries (as opposed to tables based on actuarial principles) is admitted in personal injury (including fatal accidents) litigation only in exceptional cases, for example, where there is medical evidence to the effect that the claimant is likely to live considerably shorter (or longer) than the “average” person of his age and sex. Even in such exceptional cases, the “normal and primary route” by which evidence of life expectancy is permitted is by admitting evidence from medical experts with a report from an actuary being admitted only if the medical experts significantly disagreed on this issue after written questions have been put to them.”

28. Section 10(1) of the Civil Evidence Act 1995 was enacted in the UK to provide for the Ogden Tables to be admissible into evidence.  However, this provision was never brought into force and, given the current wholesale acceptance of the Ogden Tables in the UK, is unlikely to be brought into force.

29. The extensive use of the Ogden Tables in the UK has reduced the contest over multipliers there to a contest over decimal points.  In Tinsley v Serkar[33], the claimant sought a multiplier of 23.76 and the defendant offered a multiplier of 22.92 to assess the costs of lifetime care for the plaintiff whose life expectation had been reduced.   

30. The Hong Kong version of the Ogden Tables, based on Hong Kong Life Tables and using the methodology of the Ogden Tables, was first produced by Mr Danny L Quant and admitted into evidence before Cheung J in Chan Pui Ki v Leung On.  The “Quant Tables” have now been overtaken by the Chan Tables.  The 2005 Chan Tables and the 2012 Chan Tables mirror the Ogden Tables in providing 3 sets of actuarial tables to cover multipliers for pecuniary loss for life, multipliers for loss of earnings up till retirement age, and multipliers for loss of pension commencing from retirement age.  The 2005 Tables took into account the Hong Kong Life Tables 1990-2033 and the Hong Kong Population Projections 2004-2033, issued by the Demographic Statistics Section of the Census and Statistics Department and released in June 2004.  The 2012 Tables rely on Hong Kong Life Tables 2004-2039 and Hong Kong Population Projections 2010-2039 released in July 2010.  The Chan Tables give higher values than the Ogden Tables because life expectancies are higher here than in the UK.

31. The range of disputes over the appropriate multiplier to be adopted is likely to narrow with the use of the Chan Tables, and it is likely that, as in the UK so in Hong Kong, multipliers will be awarded with 2 decimal places.  The tables have various columns giving values based on rates of return ranging from 0% to 5%. The appropriate column to select in the tables must depend on my decision, and any appeal from that decision, following the forthcoming trial of the preliminary issue of the proper rate of return to adopt in the selection of appropriate multipliers.  Nevertheless, the courts must not be slaves to the actuarial tables.  Quite apart from special factors in particular cases, for example, where there is clear evidence that the plaintiff is atypical and will enjoy either longer or shorter expectation of life, it is clear that the tables do not take account of other risks and vicissitudes of life, other than mortality, such as the possibility that the claimant would have ceased to earn for periods of time due to ill health, or loss of employment, or may cease work for periods of time to care for children or other dependants.  The discount to be applied to the multipliers found in the Chan Tables to reflect these contingencies is likely to be a matter of some considerable debate. Nevertheless, it is clear that there is no need to make any discount for the possibility of earlier death as that contingency has been taken into account in the actuarial calculations[34].

32. Mr Ramanathan SC did not oppose the admission of the Chan Tables and accepted that, as in the UK so in Kong Kong, actuarial tables should be the starting point rather than a cross-check. He also agreed with the statement of Lord Lloyd that a judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to ‘a spread of multipliers in comparable cases’[35].  I agree that the Chan Tables should be accepted as the starting point in Hong Kong, just as the Ogden tables are accepted as the starting point in the UK.  In future, there should be less need to refer to previous case law of multiplier precedents, particularly if those cases were decided without reference to actuarial tables by way of a cross-check.  However, that case law may still be relevant in the case of a plaintiff who is atypical and has either a longer or a shorter expectation of life than other persons in his or her age group.

Costs and Setting Down

33. Although I was minded, initially, to order the costs of these applications to be in the cause of the preliminary issue I was persuaded to reserve those costs to be dealt with at the conclusion of the trial of the preliminary issue.

34. Finally, I grant leave to the plaintiffs to set down the trial of the preliminary issue within 14 days.

Other pending actions

35. My decison at the trial of the preliminary issue may impact on pending cases for damages for personal injury where there are claims for future loss and expenses.  However, there is no need for the trials, or assessements of damges, in such cases to be delayed or adjourned.  The trial judge or master can proceed to assess damages in these cases, including the multiplicand for the claims for future loss and expenses, and defer his or her decision on the multipler(s) to be adopted pending the conclusion of these proceedings and any appeal therefrom.