WONG WAI HAN AND OTHERS v. KOWLOON MOTOR BUS CO (1933) LTD AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

___________

JUDGMENT

___________

1. CHIU Suk-to (the deceased) died on 17th March, 1982 at the age of 53, as a result of injuries received on 14th March when one of the 1st defendant's motor buses crashed through a safety barrier, and crossed the pavement along which he was walking. Liability was incontestable, but not in fact admitted until the first day of the trial. This was too late to prevent two police officers and one ambulance man from coming quite unnecessarily to Court. Such irresponsibility, for selfish and empty tactical reasons, falls in my view to be condemned and should carry a penalty beyond costs.

2. The deceased died intestate. The action is brought by his administrators under the Fatal Accidents Ordinance (F.A.O.) and the Law Amendment and Reform (Consolidation) Ordinance, (L.A.R.C.O.) for the benefit of his family. The family consists of his widow, WONG WAI HAN; his son CHIU HUNG PING born 30th September 1960; three daughters CHIU Siu-ling, born 23rd September 1962; CHIU Siu-yin, born 1st November 1964; and CHIU Siu-fung, born 26th February 1969; and the deceased's own mother. It follows that the same class of persons benefit under both Ordinances. The Plaintiffs have accordingly invited me to make one assessment under LARCO, because this would in any event exceed and subsume any F.A.O. assessment, and not to go to the artificial lengths of making any separate F.A.O. assessment. Subject to satisfactory undertakings being given to protect the interests of the youngest daughter who is still an infant, I find this suggestion sensible and attractive. It is not dissented from by the defendant, but Counsel were divided as to how such LARCO assessment should properly be made, and it is necessary to resolve this conflict at the outset.

3. The Plaintiffs invited me to apply what is described as the "correct approach for a trial judge in assessing the free balance" in WONG Sai-chuen v. TAM Mai-chun 1983 H.K.L.R. 331 at p.338, as modified by the decision of the Court of Appeal in England in Harris v. Empress Motors Ltd 1983 3 ALL E. R. 561. This approach involves:-

4. In answer to this the defendants first objected to the "free balance" approach, and invited me to apply the dependency plus ten percent approach suggested in the same case at page 339. A conflict between the two was suggested. I disagree. In my judgment the Plaintiffs are right, and this is now the only correct approach. What O'Connor L.J. described in Harris as the "hidden difficulty" in following the decisions in Pickett 1980 AC 136 and Gammell 1982 AC 27 did not emerge in WONG Sai-chun. The difficulty arises in respect of the deceased's expenditure, e.g. on the house, which is not solely personal to him but which is made for the joint benefit of himself and the family. For F.A.O. purposes it is treated as part of the dependency. Hence the conventional current approach in England, where the family consists of husband and wife alone, of adopting for pearsonal expenditure of the deceased the conventional figure of 33%, the retionale of this being "that broadly speaking the net income was spent as to 1/3 for the benefit of each and 1/3 for the joint benefit" per O'Connor L.J. in Harris at p.565g. For LARCO purposes on the other hand that Court's ruling, which I adopt and follow, is that such joint expenditure must be apportioned between the beneficiaries.

5. Secondly, the defendants submitted that in calculating the dependency or personal expenditure since the date of death I should make an annual assessment which involved not simply estimating the deceased's personal expenditure, but also estimating or assuming greater contributions to the family exchequer from the widow and from working children. Cases which admit of such treatment are I think exceptional. The general principle I believe to be that stated by Lord Scarman in Gammell's case 1982 AC 27, at p.78 when he says: "subtle mathematical calculations based as they must be on events or contingencies of a life which he will not live, are out of place: the judge must make the best estimate based on the known facts and his prospects at time of death". This a salutary remainder of our limitations; that we may use multipliers and multiplicands but these are not precise tools but guides to a "best estimate".  We have to assess the might have been: and what can be seen at the trial to have occurred since death, may substantially be influenced by the death itself. I am satisfied that the defendants' approach is neither proper nor appropriate here.

6. With these principles in mind I shall turn to the defendants' earnings. For many years prior to his death the deceased had two jobs. First he was a Principal Fireman with the Fire Services Department. For this service he worked ten shifts each of 24 hours starting at 9:00 a. m., in every four week period. The Fire Services Department has provided detailed calculations of the income and allowances the deceased would have received until he reached the retirement date of 55 on 15th August 1984, and in relation to his pension and loss of gratuity. During his working life 4% of his salary was compulsorily deducted in respect of the premium payable by him to the widow's and orphans pension fund. I am satisfied that this would have continued until his retirement but not necessarily thereafter. His loss of earnings figures in relation to his service with the Fire Services Department are therefore not in issue and the detailed figures given hereunder are in fact agreed.

7. During his times off from the Fire Services Department the deceased drove: a lorry in 1962/3: a taxi from 1963 to 1973: and a public light bus from 1973 until his death. He drove on the Mongkok Cheung She Wan route. He kept up this very onerous working life in the interests of his family. He was very conscious of the impediment he felt that his own lack of education had imposed upon his own career. He was determined above all else to give his children a better chance. He aimed to achieve this by working extremely long hours, and being most abstemious in his own habits.

8. As a driver he worked the evening shift from 1 p.m. to about 1 a.m. the next morning, because it was the most profitable and could also most conveniently be combined with his working hours as a fireman. I am satisfied that during his life time he was working an average of 15 days a calendar month as a driver, and receiving net an average of $250 a shift. He had a particular incentive. His son's education in Canada started in January 1981. The costs of this were in the order of $4,000 a month, and must have imposed a very considerable strain upon the family budget. I therefore accept that immediately prior to his death the deceased was earning $3,750 a month or $45,000 a year as a P.L.B. driver.

9. But for his death, the deceased would I think have continued to earn at this rate until his retirement from the Fire Service. In doing this work he was acting in breach of his obligations to his principal employers, and there was always a risk of his being discovered and ordered to stop. But he had escaped detection successfully for 20 years. I apprehend this was because he allowed these activities in no way to affect the performance of his duties as a fireman. I can therefore see no reason for making a discount in respect of the chance of these activities being terminated before retirement.

10. I also accept that after retirement he would have started driving full time. He would I am sure have done this for as many days as he could, and for as long a period as he could. Translated into figures I think this would have meant driving 26 days a month, and that with good health, his family incentive, and this working life behind him he would have continued to drive at least until the age of 62.

11. His earnings as a P.L.B. driver had he lived, now and in the future, are more difficult to assess, and produced a conflict of evidence. The Plaintiffs called Mr. LAM Po-chi, who is Chairman of the Association which organizes the drivers on this particular route. In his evidence in chief he confirmed the widow's estimate, which I have accepted above, of the 1982 earnings, and put the current figure at $230 a shift. He attributed the decline to a fall in industrial activity, which he hoped would recover. This evidence was given right at the end of the second day of the hearing. The next morning I was informed that an altercation had taken place between Mr. LAM and the young man named CHEUNG whom the defendants intended to call as a witness.

12. Mr. LAM's unaided account of these events was to this effect. The previous Thursday he said that a young man giving the name CHEUNG had called upon him. "He told me he was a post-graduate sent by Hong Kong Government to make certain inquiries into public light bus matters". He asked a number of specific questions which LAM said he answered. He went on: "He told me this information would be discussed in meetings held by the District Boards in order to release certain restricted zones. At this moment many drivers gathered together - they gave opinions and suggestions". Mr. LAM said he had been angry when he had seen this young man outside the Court the previous afternoon, and realised that he was not an inquiring student at all. He said to him: "Why do you do these dirty tricks to cheat me".

13. Mr. CHEUNG later gave evidence for the defendants. Save that he denied claiming any association with Hong Kong Government, he agreed that he had called himself a student: used a student card to introduce himself: and referred to District Boards and to the release of restricted areas. He lied he said to conceal the real purpose of his visit from LAM, and on the instructions of his principals. This it was submitted was a perfectly proper way for the defendants to conduct their inquiries.

14. I accept Mr. LAM as a reliable and truthful witness. I accept his evidence and reject that of Mr. CHEUNG. I regard the methods of inquiry resorted to here by the defendants as wholly improper and totally unacceptable.

15. My conclusion is that had he been living today the deceased would have been earning $220 x 26 i.e. $5,720 a month or $68,640 p.a. as a P.L.B. driver.

16. I turn to personal expenses. The deceased lived very frgually and I am satisfied spent at the most no more than $400 a month on himself. The basic joint family expenses for such things as food and housing came to just under $4,000 a month of which $800 can be apportioned to the deceased. My estimate of the total personal expenses of the deceased at the date of death deductable for the purposes of a LARCO assessment is that they amounted to $1,200 a month.

17. In making this calculation I have ignored the wife's earnings. She owned a taxi and was drawing from this business in the period preceding the death, initially a little under and then a little over $1,000 a month. In reality these sums went towards the costs of the son in Canada. It seems to me wrong and unreal to attempt to apportion the husband's personal expenses between his and her contributions to the family income.

18. I further think that this figure of $1,200 a month is one which can reasonably be used as a continuing estimate.

19. The deceased's life style was firmly settled. His, and indeed the whole family income, was committed to the children, and primarily at death to the expenses of the son in Canada. These expenses continue still. When they cease they are likely to be replaced by similar demands in favour of the two younger daughters. My estimate of the deceased is that had he lived he would have gone on living frugally and spending on his family and especially upon his children in the same way as before. $1,200 a month is accordingly the best estimate I can make, and any further prediction of mine would in the words of Oliver L.J. in Auty v. N.C.B. 1985 1 W. L.R. 784, 800 "be only a little more accurate (and will almost certainly be less entertaining) than those of an astrologer".

20. For the purposes of the necessary deductions in respect of tax, it has been agreed for simplicity that I should deduct first a total allowance of $67,500, and calculate tax on the balance at 15%.

21. I have had to consider two multipliers. The first relates to the deceased's working life. As a P.L.B. driver I am sure he would have continued until at least 62, and possibly for shorter hours thereafter. On my figures I think it reasonable to adopt a multiplier of seven. His pension on the other hand he would receive for life. The Hong Kong life tables give a man of 53 an expectation of nearly 23 years: and a man of 55, the age at which he would have received his pension, an expectation of 21. Two competing factors are relevant. First this pension was indexed to the cost of living and would automatically have increased with it. Secondly I have to allow for earlier death and lump sum receipt. I think the proper multiplier to adopt here is 14.

22. Upon these findings my assessment of the loss of earnings claim proceeds as follows.

23. In my judgment the Estate cannot recover loss of earnings and the son's air fare.

24. On my calculations then should accordingly be judgment for the plaintiffs for $776,179.70. I will hear counsel on the steps necessary to protect the youngest daughter, interest and costs.

After argument,

25. I an now satisfied that the youngest daughter is sufficiently protected by the statutory trusts created by S.4(3) and S.5 of Intestates' Estates Ordinance (Cap. 73).