Chung Wing v. Wong Lan Ying and Another

HCA004120/1980

Practice and Procedure - Competency of proceedings - Action under Fatal Accidents and Law Amendment and Reform (Consolidation) Ordinances  Letters of Administration granted after date of writ - claim under Law Amendment and Reform (Consolidation) Ordinance unsustainable - comparison of RSC O20 r5(4) in English and Hong Kong Rules - issue of fresh omit - consolidation - exercise of discretion under O30 of Limitation Ordinance - assessment of damages for "the lost years".

BETWEEN

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Coram: Kempster, J.

Date of Judgment: 21 July 1982

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JUDGMENT

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1. On the 8th of May 1979 at about 6 o'clock in the evening a tragic accident occurred at a pedestrian crossing at Lam Tei near Castle Peak Road. As a result of that accident a young man called Chung Yick Nam who was wheeling his cycle over the crossing at the time was knocked down by a public light bus driven by Mr. Chung Fook Yan and sustained injuries which I am satisfied on the evidence I heard from the surgeon, Dr. Lau Kai Lee, were fatal and caused by that accident.

2. On the 25th of July 1980 the young man's father, Mr. Chung Wing, commenced an action against both the driver of the public light bus and the owner of that bus as he was entitled to do as a dependent pursuant to section 5 of the Fatal Accidents Ordinance, Cap. 22.

3. On the 12th of October 1981 Writ and Statement of Claim were amended to aver the grant of Letters of Administration to the plaintiff on the 6th of August 1981; to change the capacity in which he sued as that of administrator of the estate of the deceased and to add a claim for damages under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23.Such amendments related back to the date of writ. At such date it is obvious that the plaintiff was not the administrator of his late son's estate and, subject to any helpful rule of Court, the amendment was not apt to provide the plaintiff with a cause of action under the Law Amendment and Reform (Consolidation) Ordinance. The rules of Court in England and Hong Kong are not in exact accord in relation to such amendments because the English Order 20 rule 5(4) reads:

"An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity is one which that party had at the date of the commencement of he proceedings or has since acquired." (my emphasis)

The equivalent rule in Hong Kong reads:

"An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may he, he might have sued."

As I have already indicated the plaintiff might not have sued as an administrator at the date when the writ was issued.

4. It has been emphasised tat these rules are really referable to questions of limitation but that does not avail the plaintiff. Accordingly I held yesterday that the claim under the Law Reform Ordinance was not maintainable in the action as constituted. As a result the plaintiff this morning issued a fresh writ, of which the distinctive number is 1982 - No. 6329, which he was entitled to do as it was not then apparent whether or not any point would be taken by the defendant or defendants on section 27 of the Limitation Ordinance, Cap. 347. I gave leave to the plaintiff to consolidate the two actions. The evidence given in action 1980 No. 4120 was to be deemed evidence in the consolidated actions. Further, I considered the possibility that the defendant or defendant might plead the section of the Limitation Ordinance to which I have just referred and indicated that, in my view, it would he proper for the Court to exercise the discretion given it under section 30 of the Limitation Ordinance, Cap. 347. That section reads:

"If it appears to the Court that it would be equitable to allow an action to proceed having regard to the degree to which -

the Court may direct that those provisions shall not apply to the action or shall not apply to any specified cause of action to which the action relates."

I also considered the circumstances of the case and the particular matters set out under (a) to (f) of subsection 3. Among the further material considerations that affected the exercise of my discretion were the facts that the validity of this cause of action had not been challenged by Counsel on behalf of the defendants; that in substance he did not oppose the exercise of the discretion and that no fresh material was sought to be introduced with which the defendant might he unable to dear or which might involve surprise.

5. Yesterday, in the course of the evidence, I gave leave to the plaintiff to re-amend his Statement of Claim in action 1980 No. 4120 to plead breach of statutory duty by the second defendant; the statutory duty being set out in Regulation 4 of the Road Traffic (Road Crossing) Regulations, Cap. 220. But when the evidence had concluded the plaintiff sought and obtained leave to discontinue that action as against the first defendant, Wong Lan Ying, and I assume that albeit the fresh action commenced today has joined Wong Lan Ying as a defendant, the claim against him is not pursued in that action either. The second defendant for his part, and Mr. Hingorani his counsel really had no option in the matter having regard to the evidence given on oath, conceded that the accident resulted from his negligence and breach of statutory duty alone.

6. The succession of procedural steps just described having been taken it now falls to me to consider what sum it is appropriate to award the plaintiff either under the Fatal Accidents or under the Law Reform Ordinance or both. As it is common ground that the assessment under the Law Reform Ordinance must exceed and comprehend anything that the Court could reasonably award under the Fatal Accidents Ordinance and as the beneficiaries under the deceased's estate are the same persons as those listed as dependents in the claim under the Fatal Accidents Ordinance, I propose to ,assess damages under the Law Reform Ordinance only.

7. Two figures are not in issue. The first is the conventional figure for loss of expectation of life, namely $15,000, and the second the admitted figure of $8,000 for funeral expenses. I now come to the much more difficult concept of the loss of future income over what are called "the lost years". The material evidence shows that this young man was aged 26, healthy, industrious and possessed of an academic qualification the exact status of which was not apparent to me save that it indicated that he was significantly better educated than his fellow employers at the biscuit factor where he was working at the time of his death. Also his academic achievement appears to have enabled him to command fees for giving private tuition. A member of the Personnel Department of his employers, the Garden Co. Ltd., told me in evidence that the deceased was earning, with allowances, at a rate in. the region of $12,000 to $13,000 a year. The witness was unable to be specific as to the young man s future in that employment but did indicate that he Mould have had at least a reasonable prospect of attaining the level of a foreman or possibly of being transferred to the secretarial side of the business where his earnings would have been at an equivalent level. The young man's father told me about the tuition that his late son had undertaken and said that he was earning $1,500 to $1,600 a month from such activity. He also gave details of payments made to him by his late son and the mother also told me of payments made by that son to her. The father said that his son could not afford to yet married and, as I understood him, did not seem to think he ever would. I heard that evidence with considerable reserve.

8. In assessing the loss of future income to the young man s estate I take into account that inflation will continue; that wages and costs will rise and that generally young men perhaps like young women in Hong Kong are thrifty. I also take into account the fact that it is an advantage to the estate to receive a lump sum as opposed to having money coming in over a period of years. Nonetheless the hard evidence available to me of this young man's future prospects and earning capacity suggests, and I quote here from the speech of Lord Diplock in Gammell v. Wilson⁽¹⁾, that I am

"faced with a task that is so purely one of guess work that it is not susceptible of solution by the judicial process. Guesses by different judges are likely to differ widely, yet no one can say that one is right and another wrong."

However, in the same case Lord Scarman took a more sanguine view of the capacity of a judge to achieve a reasonable answer saying at p 78:

"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. 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."

Lord Scarman went on to quote from the speech of Lord wilberforce in Pickett v. British Rail Enineering Ltd. ⁽²⁾:

"The judgments, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of earnings in the lost years should be after deduction of an estimated sum to represent the victim's probable living expenses during those years. I think that this is right because the basis, in principle, for recovery lies in the interest which he has in making provision for dependents and others and this he would do out of his surplus. There is the additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts."

That passage shows that provision, for example, for any wife which, as I anticipate, the young man would have married within a few years, must come out of his surplus. The greater the provision made for a wife the lesser the provision, it may well be, that would have been made for his ascendants or younger brothers.

9. In the light of these considerations and authorities and referring also to a decision of the Court of Appeal in Hong Kong to which I have been referred called The Personal Representatives of the Estate of Wong Sai Chuen v. Tam Mei Chuen & Others; as yet unreported, Civil Action No. 133 of 1981, I propose to approach the assessment of the annual figure for the deceased's probable earnings net of tax on the basis of an average sum over the appropriate period of purchase or "multiplier" as it is sometimes called and to take that as my basis. The "multiplier" for a young man of 26 years on a reasonable actuarial basis would seem to me to be 15. Doing the best I can on the limited evidence available I reach an average of $30,000 a year whether derived from continued work and promotion in the biscuit factory or the Garden organization or from alternative clerical or academic employment or by supplementing one with another. I think the proper annual deduction for the deceased's own living expenses, again on an average basis, is $10,000; giving an overall net figure of $20,000 a year. Applying the multiplier of 15 we get a figure of $300,000. The figure for which judgment should be entered For the. plaintiff as against the second defendant in the consolidated action is, therefore, $323,000.

(1)    (1982) A.C. 27 at p 65

(2)    (1980) A.C. 136 at p 150-151

Representation:

E.C. Mumford (Rowdget W. Young & Co.) for Plaintiff

Jeevan Hingorani (H.M. So & Co.) for Defendants