CHAU KAU AND ANOTHER v. SANFIELD BUILDING CONTRACTORS LIMITED

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. Mr. Kaplan moves. the court on appeal on behalf of the Plaintiff against an assessment of damages by Penlington, J. upon the trial of an action for negligence. The award was made under the Law Amendment and Reform (Consolidation) Ordinance in favour of the administrator of a deceased workman.

2. The first point argued was one which did not appear in the Notice of Appeal as originally filed, namely that there was no evidence to support a finding by the judge that the Deceased worked, and would have continued to work, on an average 26 days a month. The only evidence on the matter was given by the Employer, who said initially that, although he could not produce any records, his workmen usually worked on 28 days a month, depending upon the number of rainy days, and that the Deceased did so work. He qualified that at the end of his testimony by saying that his employees"work 27-28 days a month!'. In his Judgment the judge sought to reproduce that evidence in the words "He said the Deceased would average about 28 days work a month (sic), and he concluded:

       "I think Mr. Chu Ping-chung, who was undoubtedly an honest witness, somewhat over-estimated the number of days the deceased would normally. have worked because, as he says, he could not work when it was raining. I think an average of 26 days a month would be a fair figure to fix."

Nothing appeared in the evidence about 26 days work a month, but counsel for the Defendant in the course of his closing address is recorded by the judge as having said "26 days a month reasonable". If the case stood thus, I think the appeal would inevitably succeed, because it would not be open to the judge to substitute his own estimate of the average number of fine days in a month. However, we now have evidence before us that counsel. for the Plaintiff in the course of argument himself chose to calculate the pre-trial loss on the basis of 26 days a month and it does not appear that he asked the judge to adopt a higher figure in accordance with the Employer's estimate. In the face of that I think it would be wrong for us to hold that the judge was not entitled to proceed on that basis, there was an implied concession that it was correct.

3. Then it was contended that the judge was wrong in finding that the "free balance" of the Deceased's income in the "lost years" would have been no more than 10% of his total income: The judge, having said that he must assess what the Deceased would have been earning after the trial., continued:

"This figure is then subject to an appropriate multiplier and then a percentage; ,of the resultant . sum is taken as representing the amount which one would have assumed he would have saved and would therefore form part of his estate, the 'free balance'."

If by that the judge meant that in every case the free balance was equal to the notional savings, he was clearly wrong. In Gammell v Wilson 19812 W.L.R. 248 Lord Scarman said at p.265H:

"The loss to the estate is what'the deceased would have been likely to have available to save, spend, . or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve"

and in The Personal Representatives of the estate of WONG Sai-chuen, deceased v TAM Mei-chun Civil Appeal 1981 No. 133 Roberts CJ. said that "personal expenses" would

"include the cost of housing, food, clothing, travel, insurance, holiday, entertainment, social activities and perhaps a car".

For my part I am not sure that Penlington, J. was saying anything more than that in the circumstances of the present case the notional savings would represent the free balance because, there was no evidence from which it could properly be inferred that the Deceased would not use up the whole of his remaining income on his "personal expenses". Be that as it may, there are two questions which we have to decide: the first is whether the judge was right to say that there was no other evidence of the free balance and the second is whether, if there was no such evidence, it was open to the court nevertheless to guess at what the appropriate figure might be.

4. There was no evidence whatsoever of personal expenses incurred before death other than the amount of rent and of some alleged payments to relatives in China. The judge said that no bank slips were found which indicated that the Deceased was sending money to his family in China. Four such slips do in fact appear in the appeal record, but there is also a "List of Exhibits" which states that no exhibits were admitted before the trial judge. Were the four slips in evidence ? Counsel before us proceeded on the assumption that they were. They were included in Item 10 in a bundle of documents said to have been "adduced in accordance with section 47 of the Evidence Ordinance and Order 38 of the Rules of the Supreme Court". If such a bundle was adduced, it should have been marked as an exhibit and it was the duty of the judge to ensure that it was so marked. There were other documents in the same bundle which were expressly referred to by the judge in his. Judgment and .I am forced to conclude that during the nearly five weeks' adjournment for the purpose of considering his judgment he forgot that the remittance slips existed. Consequently he declined to find that the relatives in China were dependent upon the Deceased and to hold that they were entitled to compensation under the Fatal Accidents Ordinance. Mr. Kaplan does not challenge the dismissal of the claim under that Ordinance, but he does submit that there was evidence of payments by the Deceased which showed that the Deceased did not during his life time use his entire income other than the 10% savings as personal expenses. Therefore; the argument goes, it was wrong to say that there was no evidence at all of a free balance exceeding the 10%. The difficulty as I see it is that the four payments were not only made at irregular intervals of time but were so small as not to indicate any substantial expenditure which was likely, on a balance of probabilities, to be repeated. This evidence was not of itself sufficient to make a finding of a 10% free balance unreasonable.

5. Mr. Kaplan than submits that the judge was entitled to take judicial notice of the (alleged) fact that no Chinese workman in the position of the Deceased could possibly have spent 90% of his income on his "personal expenses", the judge having found on the evidence that the Deceased saved 10% of his income before his death. He therefore invites us to make what we think would be a reasonable guess at the probable personal expenses and to treat the whole of the balance of income as the free balance. He suggests that in cases where actual evidence of the personal expenses is not forthcoming this is the only way in which justice can be done to the Plaintiff.

6. Attractive as that argument may be when looked. at from the point of view of the Plaintiff, it seems to me to be unsound in law. It has been repeatedly said that there should be no conventional award in respect of the lost years. It follows that any award must, be based upon evidence. I accept that there maybe cases where reliable evidence is hard to find, but that is one of the hazards in all litigation and it does not justify our acting upon evidence which is not there. Where there is some evidence, albeit that that evidence is sparse, the court will do the best it can. In the present case there is not even a scintilla of evidence as to the likely personal expenses of the Deceased other than his rent. I will assume that this is because no such evidence was available, but that is not the fault of the Defendant and if one party or the other is to be prejudiced thereby it should not be the Defendant.

7. In my view the judge was entitled to conclude that the only evidence of free balance which existed here was of the'notional savings. In the absence of evidence to suggest that there would have been likely to be any substantial change of circumstances in later years, particularly in relation to the amount of savings, he fairlyconcluded that the same situation would have continued into the lost years. This reasoning cannot be faulted.

8. I would dismiss the appeal.

Cons, J.A.

9. I agree with all that my Lord has said and would also dismiss the appeal.

10. I would add only a few words. Mr. Kaplan observed in passing that in his view conventional multipliers adopted in F.A.O. cases, which are based on the estimated working rather than the natural life of the deceased and furthermore take into account the fact that his dependants will receive accelerated payment in the form of a capital sum, are therefore not necessarily appropriate with regard to LARCO claims.

11. It may be that this point will need to be argued in full at some time, but for the moment, with every respect to Counsel, it does not seem to me that the suggested distinctions are valid. In general it will only be during a person's working life that he or she will be able to make financial provision for others and in the event of a premature death they too, if they succeed in a LARCO claim, will receive accelerated payment.

Fuad, J.A.:

12. I also concur that the appeal should be dismissed.

12th July 1985