Lee Woon (or Wan) Sun v. Wong Kin Keung and Others

CACV000026/1975

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Coram: Huggins & Pickering, JJ.A. & McMullin, J.

Date of Judgment: 9 March 1976.

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JUDGMENT

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Huggins, J.A.;

This judgment relates only to the appeal on issue of damages and the cross-appeal by the Plaintiff: the first Defendant's appeal against the decision that he was solely to blame for the accident was dismissed on 4th February.

2. Leonard, J. awarded a total sum of $215,544, made up of $72,000 for loss of earning capacity, $90,000 for pain and suffering and loss of amenities, $52,700 for loss of past earnings and $844 for other special damages. No complaint is made of the special damages, but the first Defendant contends (i) that the figure for pain and suffering and loss of amenities is too high and (ii) that the multiplier of 15 adopted by the judge in arriving at his award for loss of earning capacity was too high. The Plaintiff, on the other hand, says that the award for loss of earning capacity was too low because, it is alleged, the judge in effect discounted twice for the fact that the Plaintiff would receive the full damages at once instead of year by year.

3. The Plaintiff received severe head injuries, which left him unconscious for three weeks. He was detained in hospital for six weeks, but on his discharge he was still suffering from impairment of speech, some defect of memory, weakness of the right arm and hand and weakness of the facial muscle on the right side. He complained also of headaches and weakness of the left arm and hand. Nine months later he was readmitted to hospital for diagnostic investigation. It was decided that he was probably suffering from epileptic discharges which were causing not only the impairment of speech but also behavioural abnormalities. One of the tests carried out was described as being "particularly painful". Although the Plaintiff, by reason of his condition, tended to exaggerate his symptoms, the judge was satisfied that there was serious brain damage resulting in emotional changes, restlessness, drop in general intelligence, memory impairment, aggression and speech disorder. He thought, however, that there would be some improvement in the emotional stability once the legal proceedings were concluded.

4. Dealing first with the assessment of the pain and suffering and loss of amenities, Mr. Asome recognized that there was not much guidance to be found in the decided cases in Hong Kong, but he did suggest that an award by the same judge of precisely the same figure some three weeks earlier in FU Yuk-ming v. LEE Fook-choi 1975 H.K.L.R. 250 was inconsistent. There a child of 14 years of age received "quite appalling" injuries which disabled him "to a degree that he needed continuous attention and substantial help from others to cope with daily life". He could not walk without assistance, had to wear a patch over one eye by reason of double vision, had had to undergo four operations, including one on an eye which involved stitching the lids closed, and he showed marked impairment in memory and intelligence. He was in hospital for nearly a year and his expectation of life was reduced to about 35 or 40 years. It could, perhaps, be argued that the loss of expectation of life in the FU Yuk-ming case in fact mitigated the loss of amenities, but for my part I think the pain and suffering and loss of amenities in that case, while they lasted, so much exceeded those in the present case that the same award cannot be justified. The assessment of pain and suffering in terms of money must inevitably involve a degree of arbitrariness. The English authorities may be helpful but they do not supply a complete answer. Certainly they are more relevant to this head of damage than they are, for example, to loss of earnings. Having regard to those authorities and giving the matter the best consideration that I can I have come to the conclusion that the award in the FU Yuk-ming case should not be adopted as a yardstick and that, in so far as past awards may properly be considered at all, the award in the present case would be a better guide for the future. I would not interfere with the award of $90,000.

5. There are various ways of making an assessment for loss of earning capacity and in my view it is very much a matter of personal preference which of these one adopts, provided that one bears in mind the considerations which must affect the assessment and ensures that none of them is given undue weight. It may often be helpful to check the validity of one's own assessment by making another assessment in a different manner. Although an assessment for loss of earnings is not quite so arbitrary a matter as is one for damages for pain and suffering, it must still be acknowledged that mathematical accuracy is not possible. Indeed, some judges have taken objection on this ground to the use of mathematical tables and Pickering, J.A. has set out some of their opinions in his judgment. I do not have their horror of such tables, but I agree that tables must remain servants and not become the masters. There are so many uncertainties involved even where tables are used that the tables do not make the assessment any more satisfactory than one made without them, but equally they need not make it any less accurate. For my part I am particularly suspicious of a method of assessment which uses a multiplier chosen simply because that multiplier was used in a previous, comparable case: no two cases are exactly alike and I think it is next to impossible to select a multiplier which fairly takes account of the differences which do exist. However, that method has been commonly used and I should not be understood as saying that it must not be employed.

6. Since the hearing of this appeal I have seen the report of Moeliker v. A Reyrolle & Co., Ltd. and Nicholls v. National Coal Board in The Times Newspaper of 5th February 1976. I do not think these cases are of any relevance to the present, but the English Court of Appeal appears there to draw a distinction, which I would not draw, between damages for loss of earning capacity and damages for loss of future earnings. Although I appreciate that in assessing loss of earning capacity one may have to have regard to various possible elements of damage, it seems to me, with respect, that to treat loss of future earnings as an entirely distinct head of damage is wholly artificial and liable to cause confusion. In the present case the loss of earning capacity can properly be assessed solely by reference to loss of future earnings.

7. From these introductory remarks I pass on to a consideration of the assessment made by the trial judge. He estimated that there would be a $500 loss in every month during the Plaintiff's working life. "Having regard to [the Plaintiff's] present age of 29" he then took a multiplier of 15, with which he arrived at a figure of $90,000. Finally, he discounted the $90,000 by 20% "for present payment and payment in a lump sum" (which I think means no more than present payment in a lump sum) and awarded $72,000.

8. The monthly loss of $500 was arrived at in a somewhat arbitrary manner, but apart from that the only real attack upon it was to the effect that the judge had, or so it was alleged, ignored the fact that the Plaintiff had to pay travelling expenses out of his salary. No alternative figure was put forward. I am not persuaded that the judge did ignore the travelling expenses and I would adopt $500 as a proper basis for the subsequent calculation. I would add that it is clear, as will hereafter appear, that the judge did not - as he could have done - take into consideration in arriving at his figure of $500 a month what are generally known as "the vicissitudes of life".

9. Mr. Asome then submitted that, where a multiplier was used, 15 was the maximum number of years' purchase which could be taken in cases of personal injury and that it was not appropriate to the facts of the present case. The cross-appeal was argued within very narrow limits and, although Mr. Chang's alternative argument was that the multiplier was not high enough, he made it clear that he was not seeking more than $90,000, the figure reached by the trial judge before he made his final discounting for present payment in a lump sum.

10. What is sought to be done in assessing damages for loss of earning capacity is to provide now a fund from which the plaintiff can draw month by month an amount equal to the difference between what he will now be able to earn and what he would have earned had he not been injured. It never seems to have been doubted that at some stage, therefore, one has to discount for immediate payment in a lump sum and I suspect that it was for the purpose of making this discount that multipliers were first introduced by judges into the assessment. As I understand Mr. Chang's argument he submits that really the only justification for employing a multiplier is to allow for the lump sum payment and that that must always be the main, if not the only, element allowed for in applying the multiplier: other elements can be considered at one of several stages, including that of selecting a multiplier, (per Scholes, J. in LEUNG Tai-ah v. CHAN Tak-wan 1968 H.K.L.R. 224, 232) but where a multiplier is used it must be wrong to make a separate discount for payment in a lump sum. Therefore he argues that, since the judge must have considered the lump sum element in selecting his multiplier, by making a discount of 20% in respect of that element after having applied the multiplier the judge discounted twice for that element. At first sight that argument might appear to be right, but, although I am forced to agree that the judge's assessment was wrong, I am not sure he did make a double discount for the lump sum element. I cannot believe that he would do so consciously and since he made express provision for this element I would be prepared to assume that he did not intend to take it into account in selecting his multiplier. For the same reason I would assume that he did not take it into account in estimating the basic loss at $500 a month. This means, however, that the main, if not the only, matter allowed for in the multiplier of 15 was "the vicissitudes of life", i.e. unknown factors which may increase or (more commonly) decrease the loss which the Plaintiff will in fact suffer. Since it was apparently accepted by both sides that the Plaintiff might at the time of the trial have anticipated a working life of "about 30 years", that in turn means a discount of approximately 50% for the vicissitudes of life. With respect I do not think such a discount could be right. In WONG Wai-chun v. China Navigation Co., Ltd. 1969 H.K.L.R. 471 I expressed doubts whether awards should be discounted by more than 10% to allow for the vicissitudes of life. It has rightly been said that the vicissitudes of life may not always be on the debit side but may include unexpected good fortune. The balance is, however, not necessarily equal. It is not an unreasonably gloomy attitude to life to assume that the unexpected "slings and arrows" will exceed the unexpected benisons, though "hope springs eternal in the human breast". Thus, in deciding on the working life expectancy one inevitably has regard to averages as ascertained by experience, although personal intentions will not be ignored. A plaintiff who would in fact have worked longer than the period decided upon must inevitably lose more than he is being compensated for, but the fact that personal intentions are considered reduces the possibility of error. In the nature of things it can never be known what he would have done had he not been injured. On the other hand, a plaintiff who in fact dies prematurely, i.e. before the end of his anticipated working life, inevitably has received compensation for a loss he did not suffer - unless the premature death can be attributed wholly to the tortious act giving rise to the damages - and the fact of his premature death will be known. However, if one makes an allowance for the possibility of premature death and if the plaintiff in the event lives out his anticipated working life span, he will not be adequately compensated. This defect is inherent in any method of compensation by an immediate lump sum. I am still of the view that greater injustice may be done to a plaintiff by an over generous discount than can be done to a defendant by a discount which is not generous enough.

11. As I have said, counsel before us apparently accepted that the Plaintiff might expect a working life of "about 30 years" more. Like Pickering, J.A. I would have been inclined to proceed on the basis of a rather longer working life, because a Chinese man in the Plaintiff's station in life would not be likely to retire at 60 years if he was physically capable of continuing. There is no suggestion that this Plaintiff's expectation of life has been reduced as a result of his injury. Unfortunately the judge did not indicate whether he accepted that the Plaintiff would have a working life of 30 years, nor was there any evidence as to the precise date of the Plaintiff's birth. I would have taken the remaining working life to be 35 years. That would have produced a loss of $500 x 12 x 35 or $210,000. I would then have discounted by 10% in respect of the vicissitudes of life, making $189,000 and that accounts for everything except the element of immediate lump sum payment. It is here that I think mathematical tables can reasonably be used. There is only one variable which has to be considered in a case where salaries or business tax plays no significant part in the calculation, namely the rate of interest. We are still faced with the incidence of taxation on the fund awarded and that does present a special difficulty in Hong Kong. If money is lent or deposited in a bank any interest is chargeable with tax, whereas if the same money is invested by the purchase of stocks and shares the dividends are entirely free of tax. There have been tremendous variations in interest rates over the past few years, but dividend rates have been comparatively stable and have tended to be lower in Hong Kong than in some other places. Again one is forced to be arbitrary, but for my part I think it would be reasonable to adopt an income rate of 6% and to make no separate provision for tax. From there it is a simple matter of applying the table on p.32 of Parry's Valuation and Conversion Tables (9th Ed.), and the award at which I would have arrived would have been, in round figures, $85,000.

12. The other members of the Court has come to the conclusion that the damages ought to have been $90,000. In so far as they based their assessment on the view that the judge's decision to employ a multiplier of 15 has not been shown to be wrong it is difficult to quarrel with them. It is true that the judge's reason for taking that multiplier has been shown to be wrong and that his final award can, in the result, not be supported, but if one chooses to use this method of assessment a multiplier of 15 is not unreasonable and I would not wish to dissent from the conclusion they have reached.

13. I would dismiss the appeal and allow the cross-appeal to the extent of entering judgment for the Plaintiff in the sum of $233,544.

Representation:

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Coram: Huggins & Pickering, JJ.A. & MuMullin, J.

Date of Judgment: 9th March, 1976.

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JUDGMENT

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Pickering, J.A.:

The appeal as to liability having been dismissed we are concerned only with the appeal on the quantum of damages and the cross-appeal in respect of the same matter. I proposed to say no more about the award of $90,000 for pain, suffering and loss of amenities than that I agree with the learned President that there are no grounds for interfering with it and that the critical comparison made between that award and the identical award in the case of FU Yuk-ming v. LI Fok-choi ⁽¹⁾ where the injuries appear to have been more severe and the condition of the claimant worse, is best countered with the suggestion that the award in the latter case was on the low side rather than that that in the present case is too high.

2. The effective area of dispute in this appeal centres around the award of damages for loss of earning capacity and I would say at once that I am unable to accept Mr. Asome's argument that in the case of a 29-year-old man following the occupation of the plaintiff, a multiplier of 15 was too high. The learned judge came to the conclusion that the monthly loss of earnings would be $500 and there were obvious inherent difficulties in arriving at this figure. I am not persuaded that it is incorrect and in particular I am not persuaded that in arriving at this figure the learned judge ignored the factor of travelling expenses paid by the plaintiff himself. Even if this were so the fact that the plaintiff commonly had his dinner at the employer's premises and expense would be a counteracting factor so that the net cost of travelling expenses could have affected only minimal, if any, difference to the learned judge's figure of $500 per month.

3. It was Mr. Chang's contention for the plaintiff, that is the first respondent, that the multiplier of 15 was too low but in the course of his submission it became apparent that Mr. Chang was not pressing his point and that his real concern was to seek the restoration of the $18,000 by which the learned judge had discounted the award of $90,000 for loss of earning capacity by reason of the award representing an immediate lump sum payment.

4. We are concerned here with a man aged, at the date of the trial, 29. He was employed as an assistant to a dealer in piece goods on the basis of a salary and commission on sales and in the course of his work travelled about the Colony. There is nothing either intrinsically hazardous or physically demanding about such an occupation and there is no reason on the face of it why, but for the accident, Mr. Wong should not have continued in that occupation until he was 60 or 65 years of age, that is, for another 31 or 36 years. Once that stark projection is set beside the multiplier of 15 adopted by the learned judge, it is immediately apparent that the multiplier carried with it a very large element of discounting. But the learned judge discounted yet again for, having decided that the future loss of earnings would be no less than $500 per month - a figure extremely difficult to arrive at but with which I cannot quarrel - he applied the multiplier and then said:

"This gives us a total of $90,000 which I reduce for present payment and payment in a lump sum to $72,000".

5. It is therefore apparent that the very large element of discounting inherent in the multiplier of 15 did not include the factor of present payment and payment in a lump sum. That is to say, the initial discounting inherent in the multiplier adopted can only have related to the vicissitudes of life. If this is so, and I think logically it must be so, the initial discounting was altogether too severe and the more appropriate result would have been to have adopted a multiplier of 15 after recognizing and stating that that figure had already taken into account both the vicissitudes of life and the factor of present payment in a lump sum. In other words this figure of $90,000 should have been left intact and not further scaled down.

6. Both my learned brethren have placed some reliance upon the actuarial tables. For my part unless and until the efficacy of such tables is better demonstrated than at present, I would be slow to place reliance upon them. In recent years attempts to rely upon such tables have been firmly discouraged by the English courts, thus in Watson v. Powle ⁽²⁾ Winn, L.J. said:

"... I remain quite unconvinced that, ... the actuarial approach ... affords the court such a precise tool as it would desire to have in its hand, ... this table presents a very imprecise and therefore nonscientific mode of assessing damages ..."

7. In Taylor v. O'Connor ⁽³⁾ Lord Pearson said:

"... I do not think that actuarial tables or actuarial evidence should be used as the primary basis of assessment. There are too many variables, and there are too many conjectural decisions to be made before selecting the tables to be used. There would be a false appearance of accuracy and precision in a sphere where conjectural estimates have to play a large part. The experience of practitioners and judges in applying the normal method is the best primary basis for making assessments."

8. In the Australian case of Arthur Robinson (Grafton) Pty. Ltd. v. Carter ⁽⁴⁾ Kitto, J. concurring in allowing the appeal, said at p.334:

"I find myself unable to account for so large a verdict upon any more likely hypothesis than that a preoccupation with actuarial figures led the jury to a lop-sided view of the case, with the result that they failed in their overriding duty to be fair to both parties."

9. In Mitchell v. Mulholland (No. 2) ⁽⁵⁾ Edmund Davies, L.J. said:

"... I am not persuaded that the actuarial method has any advantages over the conventional approach. On the contrary, I think that it may ensnare one into treating as virtual certainties what in truth are mere chances. For my part, while accepting that actuary and accountant may to a limited degree provide the judge with a means of cross-checking his calculations, and in arriving at the appropriate multiplier, I am not prepared to treat them as supplying in the words of Lord Pearson, 'the primary basis of assessment.' That, I think, must still be, by the process of seeking out in the light of experience applied to the particular case, the appropriate multiplicand and multiplier, and that is the method which I (like the trial judge) propose to apply in the present case".

10. In the same case Widgery, L.J. said:

"When assessing damages for loss of future earning power the court must arrive at a capital sum to represent a recurring annual loss. If the conventional method of assessment is used this factor is reflected in the multiplier, and the weight given to it is determined by the judge. It has been persuasively argued in this case that since the capital value of an annuity can be precisely determined by reference to appropriate tables, the judge should take advantage of this, and should begin his calculations by ascertaining the capital value of an annuity of an amount equal to his multiplicand and payable for a period equal to the estimated pre-accident working life of the plaintiff. It is recognized that the amount so ascertained will have to be discounted to allow for all the chances of the plaintiff's working life being prematurely determined for reasons unconnected with the accident giving rise to the claim, but it is said that the use of annuity tables in this way introduces certainty into at least one of the elements of calculation which otherwise depend on little more than guesswork. This is an attractive argument, but previous attempts to use the tables in this way have been unsuccessful. According to Kitto, J. in Arthur Robinson (Grafton) Pty. Ltd. v. Carter (1968) 41 A.L.J.R. 327, 334 the result may be a lopsided view of the case; and in Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322, Diplock, L.J. attributes an excessive assessment by the trial judge to the use made of actuarial calculations which, as he put it, at p.346, 'do not allow for all the chances and changes of this mortal life.' I think that it is a fallacy to suppose that a more precise and accurate answer is obtained by injecting an element of certainty into one only of a number of imponderables which have to be weighed against each other, and, when it is remembered that a figure taken from the annuity tables must itself be at once discounted for hazards of life not allowed for in those tables, it cannot seriously be contended that any element of certainty is being introduced at all."

11. It is a consideration of these somewhat critical comments which has led me to endorse the employment by the learned judge of the conventional method of multiplier and multiplicand for although I am constrained to the view that further discounting of the sum of $90,000 was not justified, the method of arriving at that figure was, with respect, impeccable.

12. Before leaving this matter I would express agreement with the comment made by the learned President to the effect that the degree of discounting in respect of what are termed the vicissitudes of life may very easily be carried to excess. The attempt is to estimate the present value of prospective loss and in so doing the ordinary chances and uncertainties of life are to be taken into account; they include both good fortune and bad fortune but there is no rule of law that on balance any deduction should be made. The primary guide must lie in the proved facts of any particular case but where the plaintiff is a healthy man who, but for the injury would, so far as can be ascertained, have had the prospect of earning a continuing income for many years, the court can go too far in exercising its imagination for the benefit of the persons who have caused the loss. There can be no rule of thumb and, as I have said, the facts of each case must serve as the guide but it may well be that in the average case a discounting of 10% will come nearer to reality than one of 20% and I agree with the observation of the learned President that greater injustice may be done to a plaintiff by an over-generous discount than to the defendant by a discount which in the event proves inadequate.

13. I would dismiss the appeal and allow the cross-appeal by substituting the figure of $90,000 for that of $72,000 awarded by the trial judge as compensation for loss of earning capacity.

Representation:

M. Asome (J.S.M.) for appellant

D. Chang (Gunston & Chow) for 1st respondent

R. Mills-Owens (Deacons) for 2nd, 3rd respondents.

(1) 1975 H.K.L.R. 250

(2) 1968 1 Q.B. 596, 605, 606.

(3) 1971 A.C. 115, 140

(4) (1968) 41 A.L.J.R. 327

(5) 1972 1 Q.B. 65.

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Coram: Huggins, Pickering, JJ.A. & McMullin, J.

Date of Judgment: 9th March, 1976.

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JUDGMENT

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McMullin, J.:

Since the principal point of contention on this a peal arises out of the arguments of counsel advanced upon the cross-appeal I will deal with that point first. At the outset I would like to say that I believe we are dealing with a case which falls within the first of the four descriptive categories dealt with on pages 30 to 32 of the 3rd Edition of V01.1 of Kemp & Kemp on Quantum of Damages in the sense that a figure has been arrived at which, for reasons given, represents a steady net annual loss and which is ther fore a firm basis for calculation of the future loss to the conclusion of the working life of the plaintiff. The estim tion of an appropriate figure to componsate for personal injury is never an easy exercise, and there are additional complications in the way of a just evaluation upon appeal against an award at first instance. But we are at least relieved of the necessity to consider the complications which arise, (a), when there has been evidence that the plaintiff's total life span has been to some degree shortened as a result of his injuries, and, (b), when there has been evidence that the plaintiff's earning capacity is likely to fluctuate in broadly determinable ways over the years ahead. No such evidence confronted the learned trial judge and I understand the basis of his calculation to consist in the proposition that for the remainder of the plaintiff's working life, to whatever degree his prospects may vary under the impact of circumstances, there will remain a constant differential between his pre-accident earning capacity and his post-accident earning capacity which can most reasonably be quantified at a figure of $500 per month. That figure has been attacked as being too high or too low or at any rate too speculative but I do not see that we can reasonably interfere with it. The judge, in other words, regarded the plaintiff as having suffered a damage to his wage earning capacity which would be per perm nent for the whole of his working life and which, while it might not remain constant in quantum or character throughout the whole of that period, would nevertheless persist overall to such a degree as, taking into account all the imponderables which are implied by such an approach, could best be reflected by striking a flat rate of loss per month. Since the plaintiff was not yet actually in regular employment at the date of the trial that was necessarily a somewhat subjective estimate of the degree of his impairment but, bearing in mind the trial judge's advantage in having seen and heard the plaintiff, I certainly cannot say that the figure chosen is unreasonable; cartainly it is not manifestly so unreasonable as to oblige this court to revise it.

2. Since the conclusion of the hearing of this appeal I have seen the decision of the Court of Appeal in Moeliker v. A. Reyrolle & Company Ltd. - a report of which appeared in the Times on the 5th of February, the day following the hearing in this court, although the judgments in that case were a parently delivered on the 30th of January. That case was not mentioned before us but I think it proer to refer to it because in the judgment of Browne L.J. - the only judgment reported in ...(illegible) - the learned judge appears to approve a distinction, first made by the Master of the Rolls in Fairley v. John Thompson Ltd. ⁽¹⁾ between loss of future earnings and loss of earning capacity. I think it necessary to mention this distinction in view of the fact that the learned judge in Moeliker's Case is reported as saying that while loss of earning capacity was a long recognised head of damage quite separate from damages for pain, suffering and loss of amenity it was one which only fall to be considered when the plaintiff was shown to be in employment at the time of the trial. In the present case the plaintiff was not so employed and it might be thaught, therefore, that the latest state of the law in England would disapprove in ...(illegible) the award for loss of future earnings in the present case if I am right in interpreting that award as based upon an estimate of loss arising from the impairment of the plaintiff's earning capacity. However, I think that an examin tion of the reasons given for this distinction by the Master of the Rolls in Fairley v. John Thompson Ltd. ⁽¹⁾ make it clear that I am not faced with the daunting prospect of a direct collision between the view I feel compelled to take of the award in the present case and the great authority of the English appellant court. That collision is avoided by the making of a further and most important distinction which, to my mind, underlies the separating of these two heads of damage; a distinction which however I do not find exclicit in Fairley v. John Thompson Ltd. ⁽¹⁾ or in any of the other cases, touching upon the matter, which I have consulted, I venture to think that in Fairley's Case ⁽¹⁾ and in earlier similar cases [Browning v. War Office (1963) 1 Q.B. 751 is an example] a somewhat loose equation has been made between the phrase "loss of earning capacity" and the notion "loss of a particular earning faculty". What was lost to the plaintiff in Fairley's Case ⁽¹⁾ as a result of his injury was the opportunity to exercise a particular skill in the occupation at which he was employed at the time of the accident. He got another job at similar work and eoual wages and at the time of trial there was no evidence of continuing future loss. The trial judge, nevertheless, awarded him a substantial sum of damages because he could no longer exercise the particular skill (going aloft upon high buildings as a fitter- er'octor) which had formerly been his. Allowing the appeal as to this award Lord Denning said (page 42):

"A more important matter is the $1750 for loss in future earnings. It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages. If I may give an instance, a manual worker may be incapacitated for manual work, but after the accident he may learn a clerical trade. At his new trade he may actually earn more than he would have done before. He will have diminished earning capacity, but he has not lost any future earnings."

3. Discussing this distinction between loss of earning capacity and actual loss of future Munkman concludes (page 56 3rd Edition):

"The theoretical difference between loss of earning capacity and loss of earnings is not significant in practice, except where there is an unused earning capacity, ..."

And in the Law Commission Report on Personal Injury Litigation (Law Com. No. 56), first prepared in 1965 but reprinted in 1974, the Commissioners at page 56 in para. 204 - where a footnote expressly refers to Fairley's Case ⁽¹⁾ - take up the same theme in these terms:

"In some cases it may be impossible to establish any mathematically assessable future loss of earnings although the plaintiff may have suffered a loss of earning capacity which will probably result in loss of earnings in the future. The courts sometimes draw a distinction between 'loss of future earnings' and 'loss of earning capacity' but this distinction seems to be based on nothing more concrete that the precision with which, from the available evidence, it is possible to quantify the loss, There is, we think, no real distinction between these two heads of damage;"

For myself, I would think that there is a real distinction but only where a lost or impaired specific faculty is concerned and that, I think, is the meaning which the court was implicitly giving to the phrase "loss of earning capacity" in Fairley's Case ⁽¹⁾. I do not therefore regard anything in the report of the decision in Moeliker v. A. Reyrolle & Co. Ltd. to which I have referred as tending to invalidate the approach I have taken to the judge's finding in the present case.

4. If that be a true interpretation of the judge's intention we are thus left with a firm factual framework within which to consider the appropriateness of his calculations, a framework which is completed by the figure to be assigned to the length of time during which the plaintiff might reasonably be expected to have continued in his employment. It is true that the judgment does not make an express finding on this question, nor does it appear to have been debated in the course of the hearing, but it is common ground between the parties to this appeal that the plaintiff might reasonably expect to continue in his employment, or in employment of a similar nature, for some thirty years after the hearing of the action. Assuming that the learned judge had chosen to quantify in money terms the degree of the plaintiff's reduction in earning capacity by assigning to it a steady figure of $500 per month, the next task before him was one which has been well described in words used by an American author, in a passage cited by Scholes J., in LEUNG Tai-ah v. CHAN Tak-wan ⁽²⁾ at 231, in the following terms:

"What must be done, of course, is to ascertain the 'present worth' of each of the future instalments of lost earnings, and the award should equal the total of these sums."

I take it still to be the rule that in awarding damages for personal injury the plaintiff should be awarded full compensation for his loss insofar as that is capable of being quantified in money terms. I am aware of a decision of the Court of Appeal in England in which the learned Master of Rolls appears to have held to the contrary being supported in that opinion by Diplock L.J. (See Fletcher v. Autocar Transporter Ltd. (1968) 2 ...(illegible).B. 322). The latter judge was however careful to distinguish between a case of the nature then before the court, in which the accident had resulted in the victim being utterly changed in personality and reduced almost to a level of insensibility, from any case in which the victim, while impaired and permanently reduced in earning capacity, nevertheless persisted to a large degree to enjoy the same character and capacity for work as he had possessed prior to the accident. I should add that if the learned Master of the Rolls intended to make a general rule, applicable to all cases of personal injury resulting from negligence, to the effect that full compensation must not be given for any proved financial loss then I can only say that I find myself in respectful agreement with the dissonting judge in that case (Salmon L.J.) where he says, (page 361):

"I take the, no doubt, prosaic view that if a plaintiff is likely to be prevented by the defendant's negligence from earning CX a year for Y years, he is entitled to be compensated for the whole amount of that financial loss."

As the learned authors of Kemp & Kemp on Quantum of Damages say, in a spirited commentary upon the leading judgment (which appears in the 11th cumulative supplement to the 3rd Edition of Volume 1 of their work):

"If full compensation can be calculated it is hard to see how anything less than full compensation can be fair compensation."

As it appears to me, we have here firm figures to show both the annual amount of pecuniary loss to the plaintiff and the period of time over which that loss will extend by which to test the learned trial judge's final calculation. Be it noted however that while these are firm figures for the purpose of calculations they are nevertheless each of them of a highly speculative character. If they were not so the calculation would be simplicity itself. A. loss of $500 per month amounts to $6,000 per annum. That, over 30 years, amounts in total to a loss of $180,000. However, on the general principles applicable in all these cases that figure must then be cut down by reference principally to two factors viz.: (1) the fact that the whole sum was being paid at one time with all the advantages that lump sum payment confers; and (2) the manifold contingencies which affect all human life and some at least of which are bound to be adverse rather than beneficial. There may, of course, in addition be some special individual risk affecting the case of the particular plaintiff and ...(illegible) - but such is not the case here - a further reduction in the judge's estimate of likely future loss of earnings and hence affecting either of a multiplier or else the estimate of likely annual loss. One would think that in the normal case both the factor of the general unspecified adverse contingencies of life and the fact of present lump sum payment would have been taken into account in choosing the multiplier. That is, indeed, the whole reason for the stark contrast appearing in most cases where the multiplier/ multiplicand method is adopted, between the accepted figure representing the duration of the proved loss and the "purchase years" figure actually chosen. Mr. Chang's principal complaint on behalf of his client, the first defendant, is that the learned trial judge having chosen a figure of 15 years as his multiplier then went on to say:

"This gives us a total of $90,000 which I reduce for present payment and payment in a lump sum to $72,000."

This counsel says amounts in effect to a double discounting of the accepted figure of true loss. To my mind he is clearly right. In choosing a multiplier to calculate the sum required to neutralize pecuniary loss over a long period of years the factor of present payment in a lump sum will invariably be the major factor and allowance for general future contingencies in the form of adverse change should grow smaller and smaller the further into the future it is sought to discern the possibility of such change [See the comments of Diplock L.J. in Mallett v. McMonagle (1969) 2 All E.R. 178 at 191 letters H -I]. If the figure of $90,000 were the true figure of the estimated loss then the scaling down to $72,000 would have been closer to conventional propriety given a low interest rate of 3 ½% - 5 ½%. But, as I have said, the true estimated figure of loss is twice that, i.e. $180,000. Either, therefore the learned judge has, as Mr. Chang suggests, doubly discounted the estimated sum of loss to allow for the factor of present lump sum payment or else in choosing his multiplier he has made an enormous deduction by reference to the usual "contingencies of life". Mr. Chang does not complain of the figure of $90,000 itself and although at one stage I was inclined to regard that as somewhat low in view of the firm finding that the plaintiff would lose $500 a month for the rest of his working life, there is some evidence in the actuarial tables appearing in the 3rd Edition of Vo1. 1 of Kemp & Kemp on Quantum of Damages to show that I was mistaken. ...(illegible) tables may be used as a rough guide in checking on the validity of the award in cases here (a) the rate of future loss can be assessed at a firm figure; and (b) where the plaintiff has suffered no substantial loss of expectation of life. We are concerned here with the value at the time of trial of unvarying sums of $6,000 per annum extending from the date of trial 30 years forward in time. At pages 45 and 46 those actuarial tables show the value in pounds at the date of trial of a prospective loss of a hundred pounds per annum given that the plaintiff is to be ragarded as being within the general population mortality range and given also an interest rate of 5 ½%. It will be seen (page 46) that a man who at the date of trial was 30 years of age and whose working life is expected to cease 30 years later when he is 65, would, upon these figures, and substituting dollars for pounds acquire an annual income of $100 per annum for each of those 30 years upon an initial investment at the date of trial of a sum of $1,516 at 5 ½%. In the pr sent case we are concerned with an annual sum ...(illegible) lmost exactly sixty times that amount, or $90,000 in round figures, i.e. just about the figure chosen by the learned trial judge. The alternative table at page 44 employing an interest rate of 3 ½% yields for the same period in round figures about $105,000. At page 36 of the same work the authors are however careful to point out the implication of thase figures where they say:

"It should be emphasized that the sums obtained from the tables should not be discounted either for immediate payment or for the principal of the 'contingencies of life', namely, the possibility of death. The other contingencies may be allowed for by making suitable adjustments, up or down, to the annual sum used as the basis of calculation."

In short, having boldly, and in my opinion justifiably, cut through the fog of uncertainties affecting the plaintiff's future by choosing a definite sum to represont the regular and undiminishing degree of loss in earning capacity the learned judge then found himself confronted by a figure which, perh ps because he felt in all the circumstances that, as necessarily speculative, it was over-genarous, proceeded to cut down drastically not by reference to the uncertainties of the plaintiff's future life but because the payment was to be made in a present lump sum. That should already have been reflected in the multiplier and the only other reason one might assign for the further reduction would be the contingencies of the ensuing 30 years. Yet it has often been stressed in decided cases that such contingencies should not be given undue weight. An example is Teubner v. Humble ⁽³⁾ an Australian case in which Windeyer J. commented adversely on Australian practice of taking one-third for bad luck without allowing for the possibility of beneficial contingencies counter balancing those which were adverse. At page 49 of the 3rd Edition of Munkman's Damages for Personal Injuries and Death the learned author says:

"Generally while future risks must always be taken into account, it seems possible to overrate their importance. Where the injured man has been in good health and had excellent prospects it will be legitimate for the court to conclude that the risk was slight and might be disregarded."

And at a later point (page 50):

"It is suggested that, where the facts of the case do not in ...(illegible) some special individual risk, the general contingencies of life ought not to be rated too high, and in the case of a healthy person no allowance at all ought to be made, except as shown in tables of average expectation of life."

It is not in dispute that the plaintiff was formerly a healthy man and there was no evidence of any espocial risk such as might render his future uncertain. The learned judge makes no express mention of future contingencies either in choosing the multiplier or in reducing the final figure ...(illegible) at by the use of the multiplier chosen. The only express reason he gives for reducing that final figure is that it was to be paid in a persent lump sum. There is no doubt that he had in mind the adverse uncertainties affecting the plaintiff's future but if he chose his multiplier solely by raference to those contingencies then I would think, upon the authority of many decided cases, that to choose a figure of half the number of years in what is now the uncontosted likely working span of the plaintiff was to give altogether too high a value to those contingencies even if one were including the "principal contingency" i.e. the possibility of earlier death. Other adverse contingencies should in my view either be disregarded altogether in view of the long period being considered and the extremely speculative nature of any such provision, or else be given a small or even nominal value in any further discounting. I would think myself that the figure of 15 was about right if regard be had both to such future contingencies and to the fact of lump sum payment and I have therefore no difficulty in unholding Mr. Chang's submission that there has been what he terms a "double discount". I would allow the firat defendant's cross-appeal to the extent of restoring the initial figure of $90,000 determined by the learned trial judge.

5. As to the appeal itself there is little I wish to add since I am in general agreement with what has been said by the learned President. Whether or not 15 is to be regarded as a "conventional maximum" where the multiplier/multiplicand method is chosen - and it certainly does appear that that figure is not often exceeded in the English cases, though occasionally it is exceeded - I cannot regard it as excessively high in the circumstances of the present case. As to the figure awarded in respect of pain and suffering, while I can see the force of Mr. Asome's argument both upon the recent decision in FU Yuk-ming v. LEE Fook-choi and Another ⁽⁴⁾ in which an identical sum was awarded for pain and suffering in respect of a man whose life expectancy had been reduced considerably and whose total final situation seemed less favourable than that of the present plaintiff I can only say that in all the circumstances I cannot regard this figure as too high. Awards under this head until fairly recently in Hong Kong have been to my mind altogether too low. It can scarcely be denied that the present plaintiff has suffered very grievously and that his suffering extended over a considerable period of time, including some very painful treatment, but residing principally, as the learned judge himself found, in the drastic all round impairment of the plaintiff as an individual due to the brain injury and the residual mental effects thereof. I would dismiss the appeal as against all the respondents and allow the cross-appeal to the extent already indicated.

Representation:

M. Asome (J.S.M.) for Appellant.

D. Chang (Gunston & Chow) for 1st Respondent.

Mills-Owens (Deacons) for 2nd & 3rd Respondents.

(1) (1973) 2 Lloyd's Law Reports 41.

(2) (1968) H.K.L.R. 224.

(3) (1963) 108 C.L.R. 491.

(4) (1975) H.K.L.R. 250.