Kowloon Motor Bus Co (1933) Ltd. and Another v. Ng Kung

CACV000007/1983

BETWEEN

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Coram: Roberts, C.J., Huggins, V.-P. Barker, J.A.

Date: 9 May 1983

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JUDGMENT

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Barker, J.A.:

Preliminary

1. On the 31st day of May 1979 Ng Yuk Han, hereinafter referred to as the deceased, was riding a bicycle along Prince Edward Road outside Kai Tak Airport when he was knocked down by a bus owned by the 1st Appellant and driven by their servant, the 2nd Appellant and received injuries from which he died some days later. His father brought this action on behalf of his son's estate under the Law Amendment and Reform (Consolidation) Ordinance (LARCO) and on behalf of the dependents, under the Fatal Accidents Ordinance (FAO).

2. At the trial, liability was contested but that is no longer an issue. This appeal is brought solely on the question of quantum of damages.

3. The deceased's family consisted of his father, (the Plaintiff), his mother, two brothers and five sisters, one brother and three sisters being younger than, and financially dependent upon, him. The deceased died intestate, and consequently, by virtue of section 4(6) of the Intestate Estates Ordinance, the sole beneficiaries of his estate were his parents, aged 54 and 48 years respectively at the time of his death. It follows that any sums awarded to the deceased's brothers and sisters under FAO did not merge with the LARCO damages.

4. The trial judge awarded $481,300 under LARCO and $108,000 under FAO. Both awards are attacked.

FAO damages

5. We deal first with the FAO damages. The judge assessed the          dependency upon the deceased of each infant dependent at $250 per month and awarded, to each, pre-trial damages of $10,500, based on the fact that 3½ years had elapsed between the accident and the trial. These figures have not been challenged. However the judge, assuming as he was entitled to do that the deceased would have continued his support until each child reached the age of 18, went on:

6. He then awarded Yuk Wor one year's post-trial damages (as he termed them) Yuk Chun 4 years post-trial damages, Yuk Man 7 years post-trial damages and Yuk Wai 10 years post-trial damages.

7. This was clearly wrong, as the Respondent's Counsel promptly conceded, since it took no account of the fact that, as the dependents were receiving a lump sum instead of future payments, a discount should have been made from the full amount. By a sensible agreement, the Respondent's Counsel conceded that the FAO damages should be reduced to $73,500.

LARCO damages

8. We turn then to consider the LARCO damages. Before us, the awards of $15,000 in respect of loss of expectation of life and of $5,500 for funeral expenses were not challenged, and no criticism was made of the multiplier of 16 taken by the judge for the lost years.

9. It was however submitted that the judge should have first assessed the FAO damages and gone on from there to a consideration of the LARCO damages. This resubmission was based on a dictum of Roberts, C.J. in WONG Sai Chuen v. TAM Mei Chun ⁽¹⁾, where the Chief Justice at page 12 suggested that it would be open to a judge to assess the F AC dependency, to apply this figure as the first part of the free balance and to add to this the deceased's notional savings during the lost years, thus arriving at the LARCO damages. This ware a suggestion and no more.

10. The judge in the present case did not adopt this approach. He observed quite rightly that the LARCO damages, going as they would to the deceased's parents, must exceed any FAO damages they might get, because the latter damages would be calculated on a multiplier based an their ages whereas s the former had to be calculated on a multiplior necessarily higher, based on the age of the deceased. The judge was of the view that it would be a work of super erogation to assess their FAO damages, and we cannot see any fault in his reasoning.

11. The judge adopted, in assessing the LARCO damages, the principles set out on page 10 of the judgment in WONG Sai Chuen ⁽¹⁾ (op. cit.). These were that a trial judge, in assessing the free balance (i.e. that part of the deceased's earnings which would have passed to his estate) should"

12. It is not submitted that the judge failed to apply these principles, save in one respect, which is an important one, and it is as follows. The judge so it is said appears to have assumed that the situation at the deceased's death would have subsisted for the rest of his working life. It behoves the judge, the submission goes, to take into account in the assessment of the LARCO damages any changes which may occur in the future and to adjust such damages accordingly up or down.

13. With this statement of principle we would not disagree. A judge ought not to assume that the financial position of the deceased crystallised at the date of his death. He should, in assessing LARCO damages, take into account any changes which it is reasonable to infer would take place in the future. For example, if the deceased was engaged to be married, it would be reasonable to assume that he would marry and, probably, have children. But a judge in this sort of case may well, and we think properly, say to himself "I am aware that I hive 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."

14. What was the deceased's position immediately prior to his death? The judge found that his monthly earnings were $3,500 inclusive of his double salary and bonus. This was a finding which was not challenged by the Appellants ant which they. could not successfully challenge. He held further that the deceased's mother gave to her son $500 a month by way of pocket money, and that the Share of the household expenses attributable to him was $600. Accordingly, said the judge, the multiplioend for the LARCO damages was $2,400 a month or about two thirds of the deceased's income.

15. Having arrived at this conclusion, the judge went on:

16. Does this passage mean that the judge in his assessment shut his eyes to the future? We do not think so.

17. It was submitted on behalf of the Appellants that it was a reasonable inference from the known facts that, as and when the deceased's younger brothers and sisters reached the age of 18 years, they could cease to be dependent on the deceased and would indeed themselves to the family budget so that the deceased's contribution would be likely to decrease or cease altogether. This is certainly one possible inference but not the only one. For instance, on attaining the age of 18 years, the children might leave the family fold altogether or not be able to obtain employment. Even if these children did begin to contribute, the deceased might himself continue his contribution unabated in order to improve the family standard of life, for example to rent a larger flat which might well become necessary as the children grew up. Thus we do not consider that the inference suggested by the appellants was so strong that the judge ought to have adopted it in his calculations.

18. Next it was submitted that the judge was wrong to ignore any financial contribution made by the Plaintiff himself.  We agree, but we think that even if he had taken it into account he would have been justified in holding that such contribution would have made little, if any, difference to his award. Prior to his son's death, the Plaintiff had for some years been off work through injury and had made no contribution to the family budget. Even before this injury he had been in and out of work, and his contribution had been sporadic and small. It is true that after the death of the deceased he obtained work and contributed $1,000 per month, but had the deceased not been killed, it may well be that the Plaintiff would have been content to rest upon the financial shoulders of the deceased, as he had before. Moreover, even if the Plaintiff had begun to contribute, the considerations to which we adverted in the penultimate sentence of the previous paragraph might still apply.

19. On the obverse side of the coin, it was submitted on behalf of the Respondent that the proportion of the deceased's future income which would have been spent on his personal expenses would probably have declined or at least would not have increased, by reason of the likelihood of the deceased marrying and having children. Statistics, produced by the Census and Statistics Department, Hong Kong, were laid before us in an attempt to show that, as statistically more than 50% of the male population in Hong Kong do marry, it was more likely that not that the deceased would have been one of this majority. He might, or he might not. Even had he married, he might have married a wife with money or a fob or an extravagant wife who insisted that he spent more o himself; or they may have had no children. This submission in our view is inviting us to take a leap in the dark.

20. There is one further matter which should be mentioned. In the passage quoted above from the judgment, it is possible that the judge was intending to find that the deceased's earnings would not have increased from the date of death to the date of trial and that they would not increase during the whole period of the lost years. The judge does not expressly say so, and it may well be that he did not mean to do so. However it is unnecessary for us to come to any conclusion on this point.

21. For the foregoing reasons, we are not persuaded that the judge was so wrong in his assessment of the LARCO damages that this Court ought to interfere.

Taxation

22. One final matter should be adverted to. The judge, at page 12 of the judgment said "In the present ease there deceased did not pay salaries tax and I propose disregarding this aspect of the matter." Application was made before us and opposed, for leave to argue that this was incorrect since a person earning $3,500 per month (as the judge held the deceased was) would have been liable to tax. Nevertheless there was no evidence as to liability to tax and even  if the point was taken below, and we are not satisfied that it was, it must have been a very late stage and half-heartedly. Had the matter been a pure question of law, the lateness of raising it might not have been fatal to the application. But in our view questions of tax are either matters of mixed law and fact or at the very least are matters upon which it could be permissible to call evidence to seek to show that the incidence of tax could be avoided altogether or, if not, mitigated.

23. It is therefore incumbent on a party who believes that liability to tax is relevant to an assessment of damages to make it clear that he is so alleging and thus afford the other side an opportunity to call evidence. This was not done in the present case and that is why we refused the application.

Summary

24. In the result, the appeal is allowed to the extent that the FAO damages are reduced from $108,000 to $73,500.

25. For the sake of completeness we should add that the numerous other points contained in the Notice of Appeal and Supplemental Notice of Appeal not expressly mentioned in this judgment were not taken before us.

(1)    1981 Civil Appeal No. 133

Representation:

Mr. M.J. Beloff, Q.C. & Miss Alice Mok instructed by Munro & Co. for Appellants/Defendants.

Mr. R. Mills-Owens, Q.C. & Mr. M. Bunting assigned by D.L.A. for Respondent/Plaintiff.