Yeung Wing v. V.S.L. Engineers (Hong Kong) Ltd and Another
Read the full judgment text of HCA 3072/1979 on BabelCite. This High Court CFI judgment.
1. The plaintiff is the administrator of the estate of YEUNG Chun-chung, who died intestate on the 19th May, 1978.
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HCA003072/1979
----------------- Coram: Roberts, C.J. Date of Judgment: 22nd January, 1981. ----------------- JUDGMENT ----------------- Facts 1. The plaintiff is the administrator of the estate of YEUNG Chun-chung, who died intestate on the 19th May, 1978. 2. The plaintiff brings the action on behalf of the estate of the deceased under the Law Amendment and Reform Consolidation Ordinance (Cap. 23) ("Larco") and on behalf of himself and other dependants under the Fatal Accidents Ordinance (Cap. 22) ("Fao"). 3. The deceased, who was born on the 23rd May, 1956, and was employed by the first defendant as a labourer, was working at a construction site at H.M.S. Tamar, Hong Kong. The first defendant was a sub-contractor working on the site, where the second defendant was the principal contractor. 4. At about 9.15 on the morning of the 19th May, the deceased and others were working in a suspended cage, on the outside of a partly constructed 29-storey building on the site. As they did so, the cage became detached, throwing the deceased into the harbour from a height of 110 feet, as a result of which he suffered fatal injuries. 5. At the outset of the hearing, counsel for the first and second defendants admitted liability and agreed that 40% of liability should fall on the first defendant and 60% on the second defendant. 6. It is therefore necessary only for me to assess the quantum of damages payable to the plaintiff. This can be conveniently dealt with under the following three heads -
1. Loss of dependency 7. In general, I thought the plaintiff and his wife to be honest witnesses. Neither was very intelligent and both found some questions difficult to understand. I believe this to be the reason for the difficulty in obtaining some answers from them, rather than any evasiveness on their part. Where their evidence conflicts, I prefer that of the wife, who seemed to me to have a clearer recollection than her husband of past events. 8. The evidence of the plaintiff's wife, the mother of the deceased, was that the members of the family who contributed to the household income, made their payments to her and that she then met the various household expenses. 9. She testified that at the time of death of the deceased, YEUNG Chun-chung, the following contributions were made to the family income -
10. This gives a total, in May 1978, of $2,400. 11. However, there was some dispute as to the amounts contributed by the plaintiff, his wife and the deceased. 12. The plaintiff asserted that previously he had put the whole of the $600 or so which he earned per month into the family pool, but that as his children began to contribute thereto, he reduced his allocation to $200, since he wished to send some money to his aged mother in China. There seems to me to be nothing inherently improbable about this. His wife confirmed that he contributed $200 in 1978 and I accept the figure. 13. The plaintiff was asked why the deceased should have paid a much higher proportion of his income than the other children (about ½ as opposed to about 1/3). He replied "because he was earning more." 14. This makes sense. If one child is earning considerably more than his brothers and sisters, it does not seem unreasonable that he should pay over a higher proportion of his income, since he will still be left with more pocket money in absolute terms than the others. 15. Both father and mother were insistent that the contribution of the deceased was $800. I do not consider it unlikely that a young man should contribute about half of his income to the financial pool of a family which, as the mother says, was hard pressed for money. I see no reason to disbelieve their evidence that the deceased paid $800 a month to his mother. 16. The mother testified that she contributed the whole of her income to the family. I do not think that this can be taken literally, as she must have retained some money for personal expenses. For these, I deduct $50 and so assess her contribution at $450 per month. 17. These calculations give a total family income at the time of death of $2,350 per month. To assess the dependency, I must deduct such share of this amount as is attributable to expenditure from the family pool on behalf of the deceased. 18. In general, I consider the correct approach is to take an arithmetical share, unless there is evidence which establishes that the member of the family concerned was clearly more or less expensive than the average. There was evidence that he did not have breakfast at home; and that school fees were paid for two of his siblings; on the other hand, it would be normal for an elder son to be more expensive in other ways, for example, by consuming more power and eating more food. 19. I do not find sufficient evidence to displace the usual approach and estimate that it cost 1/9 of $2,350 to support the deceased. Thus $260 should be deducted from his monthly contribution of $800, giving a dependency of $540 at the date of death. 20. It was agreed that, by the date of trial, the deceased would have earned $2,040 per month. The mother said that she would have expected his contribution to have continued. I am prepared to find that his contribution would have increased somewhat and have continued to represent about ½ of his income or $1,000 per month. This guess is supported by her evidence that Chi-chung, the son who works as a bus driver, contributes $800-$1,000 out of an income of about $2,000. 21. At the date of trial, according to the mother, she contributes $500-$600 (I take $500 as the figure) her children $500, $400, $800-$1,000 (I take $900) and $300; her husband nothing. I accept these figures. This gives a total of $2,600; this would have been $3,600 if the deceased had contributed $1,000. If 1/9 of total income ($400) were expended on him, the dependency would be $600. 22. So the dependency at the time of death was $540 and at the date of trial $600. The median dependency was thus $570. To this I have to apply an appropriate multiplier. 23. The general approach, as I understand it, is that the courts tend to follow the multiplier used in similar cases, unless there are special factors which suggest that the normal figure should not be adopted. 24. I do not find any special factors here. The two youngest children are 19 and 17 and thus likely to be earning their own living soon. The other siblings are all earning an income. This leaves only father and mother, aged 54 and 49 at the time of the accident. There is no evidence to suggest that they would not live to a normal age. Taking into account, and being guided by, various cases of a similar nature, I adopt a multiplier of 8. 25. The award under this head must be divided into two sections, pre-trial and post-trial. The median dependency for the pre-trial period was $570. This must be multiplied by 32 - i.e. $18,240 (taking the period from the accident on 19th May, 1978 to date of trial 5th January, 1981 as 32 months). The dependency for the post-trial period would be 600 multiplied by 64 - i.e. $38,400. The total for damages under the Fao is therefore $56,640. 26. There will be interest from the date of death to the date of trial at 5 ½%, which is half the average rate of interest for the period, on the sum of $18,240. No interest is payable on the $38,400. 2. Loss of expectation of life 27. The first item of damages to be considered under Larco is that for loss of expectation of life. 28. The general principles which should govern such awards were set out by the House of Lords in Benham v. Gambling(1). It was there stated that the amount to be fixed must be a reasonable figure for the loss of a measure of prospective happiness. This is clearly an unquantifiable kind of damage, and therefore the courts have adopted a more or less standard sum, which is generally referred to as the "conventional award". 29. The amount of this has varied to reflect, in a general way but without any mathematical exactness, the decline in purchasing power of currency. 30. Thus, for example, the awards of English courts have climbed from $200 in 1940 to the £1,250 which was approved by the Court of Appeal in Gammell v. Wilson(2). 31. In Hong Kong, the conventional award appears to have been $7,500 to $8,000 in the late 1960s. By about 1975, there were cases in which the figure was increased to $10,000, though this does not seem to have been generally applied until about 1977. It seems to have been altered from time to time for no particular reason and following no particular pattern. 32. It would clearly be inconvenient if the award were revised frequently, in an effort to make its purchasing power accord with the changing value of money and requiring the courts to make yet another calculation with each claim. 33. Nevertheless, it seems to me that a somewhat more systematic approach could be adopted to advantage. I would, therefore, like to suggest for its consideration that the Court of Appeal should take the opportunity, at roughly two year intervals in the future, of considering whether or not the conventional award should be altered. 34. For the present, I think the time has come for an adjustment of the award. The value of the Hong Kong dollar has fallen sufficiently since 1975, in my opinion, to justify an upward revision from $10,000 to $15,000. I do not suggest that this is an accurate assessment of the degree to which the purchasing power of the dollar has depreciated during the past five to six years, but it does bear some relationship to it. 35. I therefore award to the plaintiff, under Larco, the sum of $15,000 for the loss of expectation of life. 3. Lost Years The living plaintiff 36. Where an injury results in the shortening of a plaintiff's expectation of life, the question arises as to whether the court should award damages for prospective loss of earnings for the period which the plaintiff's working life would have lasted but for the injury (known as the "lost years") or only for the period to which his life has been shortened by the injury. 37. In Oliver v. Ashman(3), the English Court of Appeal ruled that an injured plaintiff, who had survived an accident with a considerably reduced expectation of life, could not recover damages to compensate his estate for earnings which might have accrued to him had he lived for a normal span (i.e. during the lost years); he could recover only for the period of his post injury life expectancy. The Court of Appeal regarded itself as bound to reach this conclusion by the House of Lords case of Benham v. Gambling. 38. In Pickett v. British Rail Engineering Ltd.(4), however, Oliver v. Ashman was overruled by the House of Lords, which concluded that the Court of Appeal had not been so bound, since Benham v. Gambling was concerned only with loss of expectation of life and was not seeking to deal with a claim by a living plaintiff for earnings during the lost years. Pickett decides, therefore, that a living plaintiff may obtain damages representing the loss to his estate of the earnings during his lost years, i.e. for the period which his full working life would have lasted if there had been no injury to him. 39. This decision in effect creates a separate head of damages, not part of any award for loss of expectancy of life, based on the economic loss caused to the plaintiff by reason of his diminished earning capacity for the whole period of his pre-accident expectancy of earning life, not just for the period of his likely survival after the accident. 40. The damages should be assessed objectively and a figure reached after deducting the plaintiff's living expenses during the lost years. So this means that an effort has to be made by the court to gauge his surplus during that period. Estate of a deceased plaintiff (The English cases) 41. The question has thus been decided by the House of Lords in relation to a claim by a living plaintiff. The important question which arises in this action is whether the same principle should be applied for the benefit of the estate of a plaintiff who dies before he has obtained judgment. 42. The only appellate English decision which has been reported is that of the Court of Appeal in Gammell v. Wilson(2), which reviews Kandalla v. British Airways Board(5), Wilshire v. Gardner(6) and Benson v. Biggs Wall & Co.(7). In each of these four cases at first instance, the trial judge held that damages for the loss of prospective earnings of the deceased during his lost years could properly be awarded to his estate. 43. In Pickett, the House of Lords was dealing only with the award of damages for lost years to a live plaintiff. Thus, any pronouncement of the House of Lords in relation to the claims of a dead plaintiff would have been obiter. Nevertheless, were they to be found in any of the judgments of their Lordships, I would feel it difficult not to follow them. 44. However, I agree with Megaw, L.J.'s observation in Gammell v. Wilson that no clear consensus, that the earnings of lost years should be recoverable under Larco, emerges from an examination of the speeches of the majority view of the House of Lords. 45. There is thus no authority which binds me. But even if the High Court in Hong Kong is not bound by decisions of the English Court of Appeal, these are powerful persuasive authority and it would be unusual for them not to be followed. Brandon, L.J. and Sir David Cairns, who formed the majority opinion in Gammell v. Wilson found damages for lost years are recoverable under Larco, though Megaw, L.J. delivered a dissenting judgment. Interpretation of section 20 of Cap. 23 46. Whether or not such damages are recoverable depends upon the manner in which section 20 of the Law Amendment and Reform Consolidation Ordinance (Cap. 23) is interpreted. 47. The relevant parts of that section read as follows -
48. This section is, with minor amendments which are of no significance in this action, in the same terms as section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. The relevant part of the English Act is section 1(2)(c), the equivalent of section 20(2)(b) of Cap. 23. 49. So a plaintiff who seeks to recover damages on behalf of the estate of a deceased must establish -
50. There was some argument as to whether the phrase "on the death of any person" in section 20(1) could be said to exclude a cause of action which arises where injury and death appear to be simultaneous, by contrast with a cause which arises where there is a discernable interval between injury and death. It would be most unfortunate if such a distinction had to be drawn, since this would leave the estate of a man killed instantaneously worse off than the estate of someone who survived for a short period before dying. 51. I have no difficulty in reaching the conclusion that there is always a gap, however minuscule, between the accident giving rise to the death of a person and his death, since the act of negligence which gives rise to the cause of action must have preceded the death which it caused. 52. On the authority of Pickett, a cause of action, namely a right to recover damages for lost years, was vested in the deceased at the time of the accident. Any such right of action, provided that it is not exhausted by the obtaining of judgment or the effluxion of time, will subsist in the injured person until his death. 53. The cause is thereafter preserved, for the benefit of his estate, and damages thereunder can be recovered unless they are excluded by section 20(2)(b) as being a gain or loss to the estate consequent on his death. 54. The meaning and effect of this paragraph (b) (or rather of the English equivalent) are considered with care in all the judgments delivered in Gammell, where the arguments on both sides are fully canvassed. 55. These arguments include an analysis of the purposes of the provision and of the results which would flow from interpreting it as permitting, or as excluding, a claim for lost years. These considerations are of much persuasive force if the wording of the section itself is not clear. But if it is clear, it should be so interpreted. Any unfortunate results which may flow may be a matter for comment and for rectification by the Legislature but should not be permitted to lead a court to a conclusion which is not justified by the wording of the statute. 56. What, therefore, is a "gain or loss to the estate consequent on the death" which must be excluded from any damages awarded in an action which is preserved by section 20(1) and falls within section 20(2)(b). 57. Examples of items of gain or loss which ought to be ignored were given by Lord Wright in Rose v. Ford(8), where he instanced insurance money falling due on death and annuities ceasing on death. He added that these were irrelevant to the question of what damages can survive, because the dead man could not have collected such gains or experienced such losses in his life time since they only arose subsequent to his death. 58. This observation is reinforced by the reference to "funeral expenses", in section 20(2)(b). The inference to be drawn from their inclusion in that paragraph is that they would otherwise have been excluded as being a loss "consequent on death" within the meaning of paragraph (b). And a right to claim funeral expenses can arise only after death, which is when they are incurred. 59. I do not think that section 20(2)(b) is dealing with loss or gain in the cause of action which is preserved. Otherwise the subsection would have to be interpreted as meaning that in assessing damages for a preserved cause of action, the gain to the estate from damages in that preserved cause shall be excluded from the damages to be awarded in that action. To state such a proposition is to reveal its absurdity. Section 20(2)(b) cannot be intended to exclude damages obtained in an action ...(illegible) only survives because of section 20. This would defeat the very purpose of the section. 60. The subsection, as it seems to me, must be saying that, when damages under the cause of action which has survived are assessed, there shall be ignored other losses and gains to the estate which may be consequent on the death but which arise otherwise than as part of the preserved cause of action. Thus section 20(2) is dealing with deductions which should be made from damages in an action which has survived under section 20(1); it is not concerned with what will or will not survive. 61. So I agree with the observation of Sir David Cairns at p.577 of Gammell v. Wilson that the effect of section 20(2)(b) is that no claim which could survive by virtue of section 20(1) could be excluded by ...(illegible) 20(2)(b), even if some part of the damages claimable might be. 62. Megaw, L.J., however, at p.566 of Gammell v. Wilson, seeks to distinguish loss of earnings suffered to the date of death from loss of earnings after death. He finds that the former category are a loss antecedent to, but not consequent on death, whereas the latter (loss of earnings after death) is consequent on death and is excluded by the section. 63. Thus he attempts to divide the right to claim damages for lost years into two separate causes of action, one of which survives because Pickett says so and the other which does not. This does not seem to me to be right. Surely there is only one cause of action, the right to compensation for lost years, though the manner in which the damages are assessed may differ according to whether or not the plaintiff is alive. As Sir David Cairns puts it at p.577 of Gammell -
64. I therefore conclude that section 20(1) of Cap. 23 has preserved the rights of the deceased to recover damages for his lost years and that this right is not affected by section 20(2). 65. I fear that such an interpretation may produce unsatisfactory results and perhaps some unfairness to defendants. These are discussed fully in Gammell. In particular, the survival of a right to claim damages for lost years is likely to provide, in many cases, only a windfall for dependants who will have already recovered fair compensation for their pecuniary loss under Fao. But it must be for the Legislature to deal with these matters, if it thinks fit. Assessment of earnings in lost years 66. It is suggested in Gammell that the same principle of assessment should apply to a Larco claim as to that of a live plaintiff in a claim for damages for lost years. 67. This means that the judge would have to assess what the earnings for the lost years would have been and deduct from this total an estimated sum to represent the victim's probable living expenses during those years. This follows the principle that the basis for recovery lies in the provision which he would make for his dependants out of the surplus of his income. 68. This must be largely a matter of guess work, based on a series of shadowy factors, such as the deceased's spending habits, the possibility of marriage and children, the prospects of advancement in his career and his probable style of life. The younger the man, the more difficult will it be to discern a pattern of living from which anything like a plausible guess can be made. 69. With much hesitation, I have decided to adopt what I hope is a practical approach, unsatisfactory though it may be. This is to take an arbitrary percentage of the deceased's estimated income in the absence of any evidence that suggests that a different figure should be adopted. 70. What percentage should be taken? I guess that a normal young man, having made a generous contribution to the family income, would see little reason not to spend most of the balance on himself and his friends. But as he grew older he might well see more clearly the virtues of saving a larger part of his wages and living below his income. I am prepared to assume, however, that a person will, during the course of his working life, spend on the average somewhat less than his income. 71. I realize that any percentage which I take cannot be justified by logic, but I believe that such a figure is necessary to provide at least a starting point for courts faced with the task of estimating a future surplus of income on inadequate material. Of course, if there is evidence which suggests a different figure, this will replace the proposed conventional percentage which I will set at 10%. 72. There was little evidence before me as to the way in which the deceased disposed of the remainder of his income. He ...(illegible) a small balance in a savings account. I do not know if he ...(illegible) other savings. There was evidence that he led a rather quiet life, and was not extravagant. None of this persuades me that I should depart from this proposed conventional percentage. 73. The calculation of the future income of a deceased is a familiar, if difficult, calculation in personal injury claims and should not present any more than its usual problems. In this instance, there was no evidence that the deceased's income would have been expected to increase beyond about $2,000 per month or that he had any prospects of more senior positions in the construction industry. I therefore take $2,000 per month as the income on which to base a calculation of loss. 74. There is no difficulty about the multiplier. The same can be applied as would have been if he had suffered personal injuries and survived. It was agreed by counsel that the usual multiplier for a man of 22 would be 15 and I adopt this. 75. The total income of the deceased for the lost years would have been 2000 x 12 x 15 = $360,000. To this I apply the conventional percentage of 10%, giving a figure of $36,000. 76. There will be judgment for the plaintiff under Fao for $56,640 [with interest payable at 5 ½% on $18,240 from the date of death to date of trial] and under Larco for $15,000 plus $36,000 or $51,000. 77. The award for loss of expectation of life of $15,000 will merge with the award under Fao. The award for lost years will not so merge. This will leave a total award of $92,640. From this must be deducted the sum of $20,304 paid for the benefit of the deceased's estate by way of Workmen's Compensation. The amount payable will therefore be $72,336. 78. The sums awarded will be paid as to 40% by the first defendant and 60% by the second defendant. Representation: M. Ozorio (D.L.A.) for the plaintiff. N. Pirie (Munro & Co.) for the 1st defendant and third party. W. Lane (Deacons) for the 2nd defendant. (1) 1941 A.C. 157 (2) 1980 2 All E.R. 557 (3) 1962 2 Q.B. 210 (4) 1979 1 All E.R. 774 (5) 1980 1 All E.R. 341 (6) Unreported 6.9.79 Q.B.D. Griffiths, J. (7) 1980 7 CL, Q.B.D. Pain, J. (8) 1937 3 All E.R. 359 at 368 |