Robert Mcclellan Stewart, Jr. and Others v. The Hong Kong Philharmonic Society Limited
Read the full judgment text of HCA 1715/1980 on BabelCite. This High Court CFI judgment.
1. The matters disputed in this action go back to the early part of 1979 and even beyond. At that time, all the Plaintiffs were employed as musicians (players) in the Hong Kong Philharmonic Orchestra (the Orchestra) by the Defendant which is a limited company. Their contracts of employment were for the period 1st April 1977 to 31st March 1979. Towards the end of 1978, they received letters from the Defendant dated 12th December offering them extensions of four months to the 31st July 1979. All a
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HCA001715/1980 1980 No. 1715 IN THE SUPREME COURT OF HONG KOOG HIGH COURT ____________ BETWEEN
______________ Coram: The Honourable Mr. Justice Nazareth in Court Date of Hearing: 20th-23rd, 26th-30th May, 2nd-6th, 9th-10th, 12th-13th June, 1986 Date of Delivery of Judgment: 7th July, 1986 ___________ JUDGMENT ___________ Preliminary 1. The matters disputed in this action go back to the early part of 1979 and even beyond. At that time, all the Plaintiffs were employed as musicians (players) in the Hong Kong Philharmonic Orchestra (the Orchestra) by the Defendant which is a limited company. Their contracts of employment were for the period 1st April 1977 to 31st March 1979. Towards the end of 1978, they received letters from the Defendant dated 12th December offering them extensions of four months to the 31st July 1979. All accepted. On the 3rd of June 1979, all received letters informing them their contracts would not be renewed on expiry. The Plaintiffs then instituted proceedings under the Labour Tribunal Ordinance, but withdrew these and instead instituted High Court proceedings in action no. 3031 of 1979 claiming damages for wrongful dismissal, not upon the basis of a breach of contract but of representations made to them. On 18th December 1979, O'Connor J. struck out the Statement of Claim and dismissed the Plaintiffs' action. 2. In April 1980, the Plaintiffs commenced the present action. They claim in substance that in the early months of 1979, representations were made to them by various senior officers and agents of the Defendant assuring them that their contracts would be renewed; that nevertheless, on 3rd June 1979 they were each informed that on the advice of the new musical director, Mr. Ling TUNG, their contracts would not be renewed; that the representations were made with knowledge that they were false or that they were made recklessly not caring whether they were true or false, and that the Plaintiffs relied upon those representations and in consequence suffered loss. Their claim which is for damages is denied by the Defendant. It is acknowledged that the main issue is accordingly whether the representations alleged were in fact made. 3. Originally, there were 15 Plaintiffs in this case, all legally aided. Some of them were subsequently denied legal aid and felt unable to provide the security for costs then applied for successfully by the Defendant upon those Plaintiffs departing for their home countries. One or two withdrew for other reasons. There are now only six Plaintiffs left, i.e. the lst, 2nd, 3rd, 5th, 12th and 15th Plaintiffs. The Contracts and their Extension 4. It is common ground that all six Plaintiffs entered into written contracts to serve as musicans playing their individual instruments for the period of two years i.e. from 1st April 1977 to 31st March 1979. They were not all paid the same rates. In addition, only the 15th Plaintiff of the six was employed upon local as opposed to overseas terms, but the differences between the provisions of his contract and those of the others are minor and not material to the issues. The following provision which appeared in the expatriate conditions in the following terms is of particular significance:-
On the 12th December 1978, identical letters were sent by the Defendant to all the Plaintiffs, indeed to the entire Orchestra, the material portion of which was as follows:-
5. All the Plaintiffs accepted the extension offered. It will be seen that the last paragraph of the latter omits the non-renewal deeming provision of the former. Upon essentially that basis, the Plaintiffs sought to argue that they were entitled to renewal legally and morally. Since it is no part of the Plaintiffs' case that they were legally or contractually entitled to renewal, I will say only that I was not persuaded as to any such legal right either upon the contra proferentem rule or any trade usage or trade custom in Hong Kong, whatever the position in the United States or elsewhere. Representations by Mr. McKenzie 6. The next development was the announcement about the end of December 1978 that Mr. Ling TUNG, a Chinese conductor residing in the United States, would be the next musical director of the Orchestra. He had in fact visited Hong Kong and conducted two concerts by the Orchestra early in December 1978 before returning to the United States. 7. As early as January or February 1979, word began to filter through to members of the Orchestra that approaches and even offers of positions in the Orchestra were being made in the United States and that some of their jobs might be at risk. 8. The Board of Directors of the Defendant was known as the General Committee. Its day-to-day management was delegated to an Executive Committee. There was also an Orchestra Liason Committee. The latter consisted of four representatives of the management and four players from the Orchestra. The latter were known as the Players' Committee, and one of them was Mr. Robert Stewart, the lst Plaintiff. He was also spokesman of the Players' Committee, and the principal oboist in the Orchestra. 9. Not unnaturally, those players who heard of the rumours that their jobs might be affected were concerned. Mr. Stewart says he got in touch with Mr. McKenzie, the Chairman of the Committee, and told him of the rumours and that Mr. McKenzie immediately responded by telling him that neither his nor any of the other players' jobs were in jeopardy, only existing vacancies were to be filled by Mr. Ling TUNG. Mr. Stewart was by no means an impressive witness. He was not very precise and many of his answers were relatively long in coming, but that might have been his manner or his concern for accuracy. Also he was less than frank about his regrettable conduct at one particular rehearsal. Nonetheless having duly considered these and the other relevant matters, I accept his evidence on the general nature of Mr. McKenzie's response and find as a fact that Mr. McKenzie represented to Mr. Stewart, although not necessarily and precisely in those terms, that neither Mr. Stewart's position nor the positions of other players were in jeopardy. In my finding, the representation was intended to reassure Mr. Stewart and the players concerned, and having regard to Mr. Stewart's position as a member of the Players' Committee and indeed their spokesman, was intended not only for Mr. Stewart but also for the players whom he represented. Representation by Maria Lui 10. The rumours nevertheless persisted. Mr. Stewart approached Maria Lui, the assistant general manager of the Orchestra. It is not disputed that she told him that Mr. LING Tung was only authorized to fill existing vacancies. In my finding, the statement that Mr. Ling TUNG was only authorized to fill existing vacancies was accurate. However, in the context in which it was made, it inevitably provided Mr. Stewart, and through him, other players concerned with some reassurance about their positions and was no doubt intended to have that effect. In that regard, Mr. Koljonen, another member of the Orchestra whose evidence I shall examine later, also approached Maria Lui. I accept his evidence that she said, "Don't worry. ". Representations by Dr. Solomon Bard 11. These representations were not pleaded by the Plaintiffs and the omission was sought to be rectified much too late to be permitted. The Plaintiffs cannot, therefore, rely upon the representations and I need concern myself with them no further. Representations by Mr. Duffus 12. It is these representations that were particularly disputed and upon which the Plaintiffs particularly rely. It is necessary, therefore, to consider them carefully. 13. Mr. Duffus arrived in Hong Kong on 3rd March 1978 to take up the position of general manager of the Orchestra. He found things were not what they should have been in relation to the management of the orchestra and the morale of the players, among other matters. In particular, he decided to improve communication with the players. To that end he addressed the players after a rehearsal on the 30th April. In terms of the letter of extension, that was the last day by which new agreements of employment had to be completed. In my finding on all the evidence, there can be no question but that the players were very concerned about whether their agreements were to be renewed. 14. The six Plaintiffs gave evidence that was by no means entirely consistent as to the representations Mr. Duffus made at the meeting on the 30th April nor about the subsequent questions and answers and the general sequence. It is not necessary to set out in detail what each of the six Plaintiffs, all of whom claimed to have been at the meeting, gave as their individual versions of what was said. Notwithstanding a degree of divergence, I find a general and credible consistency. On behalf of the Defendant, it was suggested that the Plaintiffs' repeated references to "reassured" (an expression which appears in the Plaintiffs' pleadings), and to Mr. Ling TUNG's arrival being awaited as "a matter of courtesy" was an indication of the fabricated orchestration of relevant evidence. Having regard to the circumstances, the relevant evidence and the demeanour of the witnesses, I reject that suggestion. 15. In addition to the Plaintiffs, three other players who attended the meeting gave evidence in support of their claim, John Koljonen, Amy Sun and SUI Kin-chin. All three were players whose contracts were not renewed or forthcoming and the former two are Plaintiffs in a pending action against the Defendant similar to the present case. I accept Amy Sun's evidence that the meeting of 30th April was for the purpose of explaining the delay, that several reasons were given and that she took it that the contracts would be coming. Her evidence was strongly corroborative of the Plaintiffs' case. SUI Kin-chin was rather vague about the meeting and I do not regard his evidence as adding anything to the Plaintiffs' case. 16. John Koljonen's evidence needs to be examined with greater care. He remained in court for most of the proceedings after he had given evidence, and took copious notes. He met the Filippino Plaintiffs upon their arrival in Hong Kong for the trial of this action and escorted them to their accommodation. As I have said, he is a Plaintiff in a pending parallel action against the Defendant. And he was active during the hearing in briefing the Plaintiffs' solicitors. In support of the Plaintiffs' version of Mr. Duffus' statements and his claim that he too was reassured, Mr. Koljonen proved conclusively by documentary evidence that he executed an agreement for the purchase of a flat on 8th May 1979, 8 days after the meeting of 30th April. If Mr. Ling TUNG was regarded by the Plaintiffs as the emminence gris behind their misfortunes, equally John Koljonen was similarly regarded by the Defendant as orchestrating the actions against it, and efforts were made to discredit him and indeed to restrain him. Having regard to all the circumstances and to the evidence and his demeanour, in general I accept Mr. Koljonen's evidence as evidence of the truth, which nonetheless I have approached With caution before accepting upon any issue. 17. Three witnesses gave evidence for the Defendant, Lynn. Levy, CHUNG Hoi-chuen and John Duffus. 18. Lynn Levy was recruited by Mr. Ling TUNG as the second oboist. She arrived on 27th March 1979 and had been very shabbly treated by Mr. Stewart, the principal oboist. She attended the meeting of the 30th April but was rather vague about it, not surprisingly, as she already had her contract and had no reason to be concerned. She confirmed that there was great concern on the part of players, which she described as paranoia and anxiety, about renewal of their contracts, and that the meeting was regarding the necessity to postpone the contracts. According to her, Mr. Duffus said more time was needed for technical reasons such as translation and also that Mr. Ling TUNG wanted more time to get acquainted with the Orchestra and the players, to evaluate them, meaning hear the players playing in the Orchestra, nothing more, and not to audition them. The players, according to her, were anxious before the meeting and remained anxious after it. Miss Levy in my view was a truthful witness; however her recollection of what was said on the 30th was patently poor. Her reference to technical reasons and translation as causes given for the delay tends to corroborate the Plaintiffs' evidence more than that of Mr. Duffus. 19. CHUNG Hoi-chuen was a Chinese member of the Orchestra who also attended the meeting of 30th April. His contract was subsequently renewed but in a demoted capacity. His English, as he explained, was poor. Nevertheless, he paid no attention to the translation preferring instead to rely upon the explanation sought and obtained, while Mr. Duffus was speaking, from a Chinese player sitting alongside. His testimony went much further than that of Mr. Duffus in claiming that Mr. Duffus stated that he had to wait until Mr. Ling TUNG arrived to make decisions as to who or which musicians were to be retained. I was unfavourably impressed by Mr. CHUNG Hoi-chuen, and regret that I am driven to conclude that his evidence cannot be relied upon because of his marked and amply manifested hostility towards the non-Chinese players, particularly Mr. Koljonen. I reject his evidence as to what Mr. Duffus said. 20. There was also the affidavit evidence of Miss Virginia Crumb a former player now in the United States. I did not find her version of what Mr. Duffus said, which was different again, at all helpful. 21. Mr. Duffus says that the delay in production of the contracts was only one of several matters he dealt with. This is how he put his version of what he said about renewal of the contracts:
22. Mr. Duffus also produced what he claimed to be the actual note he had used at the meeting on the 30th April for the purpose of listing the points he had intended to make. He discovered it in July 1979 in response to the Defendant's solicitors' request for documentary evidence when the Plaintiffs first instituted proceedings. Notwithstanding a totally uncharacteristic error in wrongly dating the note "1/4/79" by almost a month and the absence of any explanation, I accept the note as genuine. It was in the following terms:-
23. On its face "Music Director to decide" is strong evidence that that is what Mr. Duffus intended to say. But no-one, not even Mr. Duffus himself suggested that was what he said. 24. Mr. Duffus, who, it should be noted, was present in court throughout the Plaintiffs' case, impressed me as a very able, knowledgeable and competent individual. His evidence in chief, relative to that of many of the Plaintiffs' witnesses, was remarkably coherent and also precise and detailed. However, it was shown in cross-examination that he had been less than frank in suppressing, evidence of his dealings with the American Musicians' Federation on the non-renewal of the Plaintiffs' contracts. It was also shown that his evidence was not as precise or accurate as it first appeared. 25. He spent the 8 weeks or so, which preceded the meeting of the 30th April, in attending almost all the Orchestra's concerts and many rehearsals, and in meeting players. He claimed, however, that he neither received nor detected any evidence of concern by the players about renewal of their contracts. That, I find quite remarkable to say the least. 26. Having regard to all the evidence, I doubt whether the precise words Mr. Duffus used can now be recalled. Nevertheless I accept the evidence of the Plaintiffs and their three witnesses that the players were reassured by Mr. Duffus' words. I accept that there would have been an adverse reaction if the players had been told that Mr. Ling TUNG was to decide which of them were to have their contracts renewed, indeed a very adverse reaction on the part of Mr. Stewart and Mr. Koljonen who had encountered Mr. Ling TUNG before, and knew him. 27. What Mr. Duffus says he actually said is far removed from his note and could scarcely be calculated to apprise the players that the Director was in fact to decide whether their contracts were to be renewed. Nor am I satisfied that he accurately recalls what he said. Needless to say, I prefer the Plaintiffs' consistent claim that they were reassured, to Mr. Duffus' diluted version of what his note suggests was to be said. Regardless of whether that was his original intention, and whatever his motive, whether to soften the blow, to preserve morale or to gloss over a potential problem, I am satisfied on the probabilities that Mr. Duffus in fact reassured the players as the Plaintiffs and their witnesses claim. In my finding, what he represented to the players was that their jobs were not in jeopardy and that they could expect renewal of their contracts, though not necessarily in those precise words. I should add that in my view even Mr. Duffus' version of what he said (which I reject on the probabilities) would in the circumstances have been construed by the players as reassurance, and could only have been intended as such. As I have already said Mr. Duffus claimed that he was not conscious of the players anxiety about renewal of their contracts. I believe that he must have been concerned in the interests of the Orchestra not to precipitateany sort of exodus of players, and that this and his concern to give players as much notice as possible (evidenced by the speed with which he got out the letters of non-renewal once the decision was taken) placed him in an invidious position. He would not concede this having claimed that he was not aware of the players' anxieties. But when questioned by me, he said that if he had been aware of their anxiety he would have had to clarify the position but seemed unable to say how he would do that. 28. The Plaintiffs pleaded a number of specific representations as pressed or implied. In that context, I find as a fact that Mr. Duffus made statements at the meeting of the 30th April to the following effect though not necessarily in precisely the same terms: -
29. In reference to the pleadings, I am also satisfied that in the circumstances, the oral representations including those of Mr. McKenzie and Maria Lui meant and were understood to mean by implication if not expressly that
30. In my finding, the representations in the circumstances could only reasonably have been construed as meaning that the Plaintiffs' contracts would be renewed and that they were understood in that sense, notwithstanding that the Plaintiffs were not totally convinced that the contracts would in fact be renewed. Whether the representations were deceitful or negligent 31. It was not suggested that Mr. McKenzie's or Maria Lui's statements were deceitful; nor was there evidence of that. But as senior officers or representatives of the Plaintiffs' employer, they had a duty to the Plaintiffs; that was conceded by the Defendant. Having regard to that duty and the specific nature of the allegations put to them by Mr. Stewart, I think both Mr. McKenzie and Maria Lui were negligent and reckless in not ascertaining the true position before making the reassuring representations they did, regardless of any genuine belief they may have had in their truth. It was proved beyond doubt that as early as February 1979, Mr. Ling TUNG was actively recruiting players in the United States. That he might only have had power to recommend and not to make appointments is neither here nor there; likewise that he may have indicated that his approaches were subject to the approval of the Orchestra. The mere fact that he was seeking new players placed the jobs of existing players in jeopardy. And in the result, it was not disputed that it was his word that lost the Plaintiffs their jobs. The letters to the Plaintiffs notifying the non-renewal of their contracts clearly stated that was being done on the advice of the musical director. 32. In passing, I would record that a sustained attack was made upon the professional competence and even character of Mr. Ling TUNG on the tenuous ground that he was so deficient in those respects that it was an abrogation of its management responsibilities by the Defendant and evidence of its negligence in entrusting him with the functions of musical director, including that of deciding the renewal or otherwise of the Plaintiffs' contracts, and in assuming that he would and had not immediately set in train action to replace players, even one he had not heard. I am pleased that in the end I have not had to make a finding on these allegations or to rely upon them in determining any of the issues. Although that is not always a task that can be avoided, it is not something that any court would relish in the absence of the party against whom the allegations are made and who is therefore not in a position to defend himself. 33. Proceeding to Mr. Duffus' representation it was submitted on behalf of the Plaintiffs that the representation was deceitful as Mr. Duffus virtually alone of all concerned, knew that the management had unfettered power not to renew players contracts. I do not accept that submission nor do I accept its premise that all the plaintiffs believed and believed fully that they had a contractual or legal right of renewal of their contracts. 34. There was, of course, other evidence that tended to establish deceit. Mr. Duffus had met Mr. Ling Tung in London in February prior to coming to Hong Kong, and had been told by him of his concern that there were weak players in the Orchestra. Mention was made of the principal oboe and also of the poor standard of leadership of a number of principal players. In addition there were respects in which Mr. Duffus was unfavourably impressed by the Orchestra upon his arrival, including the harshtone of the principal oboe. At the meeting of the Executive Committee on 16th March, which he attended, it was agreed that the decision to renew musicians' new contracts would be taken in May after Mr. Tung's arrival. All this tends to show that Mr. Duffus should have been alive to what at the very least was a probability that some if not many contracts would not be renewed. Nevertheless I do not think it actually establishes the falsity to his knowledge of the reassurance he gave to the players. I would therefore proceed rather upon the alternative ground of negligence. In my finding, Mr. Duffus was at least clearly negligent, having regard to his position and duty to employees as General Manager of the Orchestra and above all to his knowledge of the foregoing matters. 35. It was not disputed that the representations were made with the intention that they be relied upon, nor in my view could that not have been so. I will deal with the question of whether they were in fact relied upon in the context of the damages sustained. 36. It was submitted by Mr. Maxwell Lewis for the Defendant that the representations made by Mr. McKenzie and Maria Lui were made in their non-official capacities and were not authorised by the Defendant. I reject both submissions. In my finding it was entirely within the scope of authority of Mr. McKenzie and Maria Lui, and indeed of Mr. Duffus, to make the representations and they did so as much in their official as in their personal capacities. Quantum of Damages 37. The Plaintiffs have all claimed as damages the loss of remuneration they would have received for up to 2 years under the renewed contracts they expected. It is not disputed that their claims are founded not in contract but in tort, and in my finding the tort is not deceit but negligent misrepresentation. 38. I adopt as the law the following statement at the end of paragraph 1481 of the 14th Edition of McGregor on Damages:
39. Paragraph 1481 is concerned with negligent misrepresentation. Nevertheless as the learned Editors point out in paragraph 1479, the analogy of deceit cases can be useful. And in respect of deceit, it is observed at paragraph 1459 that:
40. In McConnell v. Wright [1903] / 1 ch. 546 (C.A. ) Collins M.R. said of the action of deceit:
41. In passing I observe that this tortious measure of damages for deceit was endorsed in Doyle v Olby (Ironmongers) [1969] 2 QB 158 (C.A.), although Denning MR held that it should extend also to consequential damage. What he said (at page 167) was
42. The direct relationship of the damages to the fraud was echoed by Wynn L. J. who said at page 168 "The damage ............ must have flowed directly from the fraud perpetrated'". Sachs L. J. at page 171 referred to Clark v Urquhart [1930] A.C. 28 saying
43. Reverting then to the Plaintiffs claims for loss of remuneration under the renewed contracts they expected, it seems to me that those claims are clearly misconceived. Neither the loss of that remuneration nor indeed the non-renewal of the contracts flowed directly or was a consequence of the representations. If the misrepresentations had never been made (or even if the Plaintiffs had been fully and accurately told of the true position) their contracts would none the less have not been renewed. 44. Virtually no attempt was made to establish any actual loss or damage that they sustained and would not have done had the representations not been made. Nor, in relation to what the Plaintiffs might have done had the misrepresentations not been made, should it be forgotten that all of them were contractually bound to serve as players until their extended contractual terms expired on 31st July 1979. I proceed then to consider the individual circumstances of each of the Plaintiffs. 1st Plaintiff 45. Mr. Stewart did not attempt to establish any loss, expenditure or detriment that he would not have incurred had the representation not been made, nor that he lost any employment that he would otherwise have secured. He did seek to prove that employment prospects were better early in the year, particularly in the United States and I would accept that. But from his half-hearted attempts to secure re-employment following non-renewal of his contract at the end of July and the lack of openings for oboists anyway, in my finding, the probability is that he did not lose any employment opportunity whatsoever i.e. that he would not have secured employment anyway. His failure to obtain employment resulted not from the misrepresentation but from the non-availability of positions for oboists, from his demoralization, and from his decision to go in for free lancing. His demoralisation may have been contributed to or accentuated by the misrepresentations raising expectations of renewal. But in my view it was primarily the result of loss of employment on non-renewal of his contract. In any event demoralisation would have resulted in loss not of the renewed contract earnings claimed, but of some other future earning the basis of which he did not even attempt to establish. In my finding, his loss of employment and remuneration was not caused by the misrepresentation. There is accordingly in my view no basis upon which I could properly make any award of damages to him and his claim must accordingly fail. 3rd, 4th, 5th and 12th Plaintiffs 46. These 4 Filippino plaintiffs all went back to the Philippines and after a while in broad terms recovered their former employment. With the exception of a forfeited deposit lost by the 2nd Plaintiff, the evidence does not disclose that any of them sustained any loss, expenditure or detriment by reason of the misrepresentations. There is no suggestion that but for the misrepresentation they would have taken earlier action to find other employment much less obtained such employment earlier. Furthermore, there is no suggestion or evidence that they would have looked to the United States for employment or that their prospect of obtaining other employment would have been better in the earlier part of the year. 47. There was some suggestion by two of these Plaintiffs, Mr. Barcelo and Mr. Ramirez that they incurred additional expenditure or suffered detriment in that one committed himself to expensive school fees for his daughter and the other got his wife to resign her job. But in the event it was conceded that the daughter moved to the expensive school before 30th April and likewise that the wife gave notice before 30th April and in any event later got her job back. Furthermore the 2nd Plaintiff, Mr. Agtarap sought to make 3 similar claims in the following respects. First, that he incurred additional educational fees for his son because he was not in a position to pay them in a lump sum and so had to pay at a higher rate. In the event under cross-examination, he was quite happy to admit that he had sufficient savings to pay the fees in a lump sum anyway, and so could have avoided the additional expenditure if in fact he did incur it. Second, he claimed that as a result of the reassurance of renewal of his contract which he conveyed to his family, his daughter resigned her teaching job in Macau. It was not made clear to me what detriment he suffered and in any case I consider such detriment, if any, would be too remote. Besides, he was not sure and could not remember when his daughter resigned. Finally, he claimed that prior to April 1979 he and his wife had contemplated the purchase of some land in the Philippines. When he relayed the reassurance of renewal of his contract to her, it was decided that she should go ahead with the purchase of the land and she accordingly paid a first instalment of 2,000 pesos. Upon non-renewal of his contract, the purchase had to be abandoned and the instalment was lost. Mr. Agtarap frankly conceded that the deposit was paid in June 1979. Mr. Agtarap's recollection of some of the distant events to which he had to testify, was a little vague and he did not seek to conceal this. His English was somewhat poor and occasionally accounted for some misunderstanding of the questions put to him. But in general I found him an honest and candid witness. I accept his evidence of the loss of the 2,000 pesos, upon which he was not shaken. In my judgment, his claim in respect of this amount must succeed. 15th Plaintiff 48. Finally I come to the 15th Plaintiff, Mr. YEUNG Siu-muk. He was the only local musician of all the Plaintiffs, and clearly sustained the most severe blow from non-renewal, both in terms of financial loss and mental distress. He has not been able to find alternative employment and even his private music teaching opportunities have diminished possibly because of the non-renewal of his contract. However much as it is to be regretted that the non-renewal of his contract could not have been accomplished in a manner that occasioned less distress to him, it cannot be gainsaid that his loss and distress flowed not from the misrepresentations made to him, but from the non-renewal of his contract. Had the misrepresentation not been made or even if he had been told on the 30th April that his contract would not be renewed, it is difficult to see what he could have done to avoid the hardships he subsequently had to endure. There apparently are simply no jobs for professional cellists in Hong Kong. His claim, too, must therefore fail. 49. I should add that the Plaintiffs sought to claim aggravated damages on the basis of the long-lasting disadvantage they would as musicians suffer from their non-renewal letters which would be regarded as dismissals; from the long-lasting disadvantage of trying to find a job geographically far away from the repercussions of the loss of the Hong Kong jobs, and from missing out on the best time for applying for new orchestral positions at the beginning of the year. 50. However from the judgment of the House of Lords in Cassell v Broome [1972] 1 All ER 801 and para 5-36 of the 15th Edition of Clerk and Lindsell on Torts it seems to me that aggravated damages, as their name suggests are merely a higher award of existing damages. They are sought here upon the ground of enhanced difficulty of finding re-employment. But this ground has not been shown to have anything to do with the misrepresentions. Nor do I accept the suggestion made on behalf of the Plaintiffs, that if the misrepresentations had not been made, they would have left and not been subject to the non-renewal letters with their damaging implication of dismissal. 51. For the foregoing reasons the claims of all the Plaintiffs must fail, save that of the 2nd Plaintiff to the instalment of 2,000 pesos that was lost. 52. I will now hear counsel upon interest on that sum and on costs.
Representation: Mr. F.A.L. Eddis, Q.C. and Mr. Waley instructed by D.L.A. for 1st, 2nd, 3rd, 5th, 12th and 15th Plaintiffs Mr. Cameron Maxwell Lewis instructed by Messrs. Philip K.H. Wong & Co. for Defendant. |