Peter Zee and Another v. Yau Yat Shing and Another

[Lost years - a further example of its stupidities]

BETWEEN:

Coram: Roberts, C. J., Cons & Fuad, JJ.A.

Date: 27 September and 6 October 1983

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JUDGMENT

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Roberts, C. J.:

1. This is an appeal by the defendants against an award of damages of $910,964 by Mr. Commissioner Clough to the estate of Mr. Leonard Zee, who was killed in a motor accident on 8th December, 1980.

2. There is also a cross appeal by the respondent, on the ground that the judge was wrong to assess the degree of contributory negligence of the deceased at one third.

Facts

3. At about 3.25 am on 8th December, 1980, Leonard Zee ("the deceased") was driving in a northerly direction along Princess Margaret Road in the middle of three north-bound lanes.

4. According to P.W.1, a taxi-driver, the deceased's car overtook him under the Pui Ching Road fly-over, which crosses over Princess Margaret Road.

5. Under the fly-over the road was flooded and an area of mud and shallow water extended for some distance to the north of the fly-over.

6. As the deceased's car passed the taxi, it skidded and swerved and its right rear bumper hit the left front bumper of the taxi.

7. After this collision, the deceased's car stopped about 75 metres beyond the fly-over, just to the north of the entry point of a slip road to the left of the north-bound carriageway.

8. P.W.1 drove his taxi past the deceased's car and reversed until he was close to it. He alighted from his taxi and walked to the rear of the deceased's car where he was joined by the deceased, who was standing about two feet from his car, behind the right rear off-side.

9. As they were standing on the road in this position, P.W.1 saw a white car, which was being driven by the first defendant, swerve as it entered the water under the fly-over and spin several times as it came towards them. He managed to reach the railing at the side of the road but the deceased was hit by the first defendant's car and received injuries from which he died.

Damages

10. The award of damages, based on a finding that the deceased was 1/3 to blame for the accident was as follows -

11. The appellants did not seek to argue that Items (1),(2) (c),(2) (d) or (3) were wrong. It was only the awards for "lost years" which were the subject of calculation by the appellants.

Calculation of figure for lost years

12. The judge reached his total award under LARCO in the following manner -

13. Following the method of calculation suggested by this court in Wong Sai Chuen v. Tam Mei Chun and Others ⁽¹⁾ the judge said that the deceased would probably have spent about 45% of his net income on his "personal expenses" as defined in Wong Sai Chuen's Case, ⁽¹⁾ leaving a balance of 55% of the deceased's net income as the amount which should be awarded as compensation for his lost years.

Criticism of judge's assessment of damages for lost years

(a) The multiplier

14. A multiplier of 15 was adopted. This does not seem to be out of line with the usual figure adopted for a man of 28 who can be expected to continua, to work until about 65.

15. Mr. Ching, however, sought to persuade us that we should find that the general levels of all multipliers were too high and should be reduced to figures which would not, as will happen in this case, produce a much larger income than the deceased was earning at the data of his death by reason of the high rates of interest which prevail at present, though the income from interest will fall far below the deceased's expected earnings from the date of trial onwards.

16. We decline to follow such a course, which would be against authority; and would introduce a new variable factor in the assessment of damages, if future movements in interest rates are to be guessed at.

17. Within one or two units, legal advisers can calculate the multiplier which a court will apply. It is recognized that it is a rough and ready measure, which takes no account of variations in interest rates. Sometimes it may have the effect of giving a deceased's estate, if interest rates are high, a larger income, without toughing the capital, than the deceased was earning at his death. But it is well understood and has been approved in many cases in the House of Lords.

(b) Assessment of the "free balance"

18. The judge followed the approach suggested in Wong Sai Chuen ⁽¹⁾ as a method of calculating the "free balance". This involves deducting from the net income of the deceased (i.e. after tax) the cost of maintaining himself - called "personal expenses".

19. The judge concluded that the deceased would have spent about 45% of his net income on his personal expenses "as contemplated by that expression in Wong Sai Chuen's case".

20. Mr. Ching pointed out to us that the assessment of personal expenses produces anomalies, in that the more a deceased would have spent on his family, the less he spends on himself and so the smaller the deduction from his net income and the larger the lost years award.

21. He invited us, though not perhaps with much confidence, to follow an Australian case of Skelton v. Collins⁽²⁾ and deduct from the net income the expense of maintaining both himself and his dependants.

22. We have no doubt that, as a result of Gammell v. Wilson ⁽³⁾, it is not open to us to adopt such an It approach.

23. As we have had occasion to remark before, awards for lost years have caused great difficulty, producing illogical and unfair results. We can only hope that the Legislature will see fit to restore reason to this aspect of awards of damages.

24. Counsel advanced several criticisms of the weight given by the judge to various factors which influenced him on arriving at his figure of 45%.

25. We see nothing so unreasonable about this figure that we ought to interfere with it. It must be remembered that a judge is being asked to try to assess, with scant evidence of the likely mode of life of the subject, his pattern of expenditure over a long period. It is mainly guesswork; and we would not impose our guess for his unless we were persuaded that his figure is clearly wrong.

26. On arriving at his figure of 45%, the judge seems to have made some allowance for the possibility that the deceased would have married sometime in the future, without expressing any definite opinion as to the chances. Mr. Ching argues that he was wrong to do so, relying upon a comment in Wong Sai Chuen⁽¹⁾that "a single man should be treated as if he would have continued to be so". That comment was obiter, since in Wong Sai Chuen ⁽¹⁾ the deceased was already married, so that the Point did not directly arise. And there is recent English authority going the other way Harris v. Express Motors ^(4). We do not think the judge can be criticised for his line of approach.

(c)    Calculation of deceased's income

27. The judge assessed the likely income of the deceased as -

28. The appellants challenged all these multiplicands, except (a), on the ground that the judge did not give the weight which he should have done to the evidence of Lau Yee Ha (P.W.5).

29. Her evidence was that the deceased was earning $5,000 per month and bonus at his death; and that the salary of the present Production Manager, the post to which the deceased was likely to have succeeded from 1st January 1983, was $13,000 per month at the date of trial, plus housing allowance and production bonus.

30. The judge based his findings as to the income which the deceased would have bon likely to have received if he had lived, an the evidence of Mr. Alton Yalluz (P.W.7), the Production Manager and a Director of Ron Walker Ltd.

31. The judge regarded Mr. Yalluz as "an intelligent and informed and credible witness", and accepted his evidence as "an informed and realistic estimate of what the deceased would probably have been paid by the company during 1981 and 1982." He similarly accepted Mr. Yalluz's estimate of the deceased's post-1982 earnings of $200,000 per annum.

32. We can see no reason to differ from the judge. In so far as Mr. Yalluz's evidence diverged from that of P.W. 5, the judge was entitled to make his choice. It is, in any event, more likely that Mr. Yalluz, as a director, would be in a better position to predict the future earnings of the deceased than P.W.5, who, in spite of her grandiose title, seems to have been little more than a record keeper.

33. It was suggested chat the judge did not make a choice between P.W.5 and Mr. Yalluz, but deliberately excluded the evidence of P.W.5 altogether from his consideration. We do not read his words as saying that.

Cross Appeal

34. The respondents challenged the judge's finding that the deceased had been 1/3 to blame for the accident.

35. His submission can be summarized as follows -

36. The trial judge directed himself correctly as to the law governing contributory negligence as follows  -

37. The judge found that -

38. We see no reason to disagree with the judge's conclusions, based on a full consideration of the evidence, that a dogma of contributory negligence should be attributed to the deceased.

39. So far as the extent of blame is concerned, we were asked in the alternative, if we were to agree with the judge's finding that some degree of fault was attributable to the deceased, to reduce the figure of l/3.

40. It is rare for an appellate court to interfere with the discretion of a trial judge and vary his assessment of the degree of contributory negligence.

41. As this court said in Au Cheung v. Choi Lai Fan ⁽⁵⁾ an appellate court should re-assess an apportionment of blame only if the judge has "substantially misjudged the factual basis of his apportionment".

42. We see no such misjudgment and decline to revise the judge's assessment.

43. The appeal and cross appeal are both dismissed.

44. The respondent should have the costs of the appeal and the appellant the costs of the cross appeal.

Representation:

C. Ching, Q.C., and T. Lai (Deacons) for Defendant/Appellants

F. Eddis (Kwan & Kwan) for Plaintiffs/Respondents

(1) Civil Appeal No. 133 of 1981.

(2) [1966] 115 C.L.R. 94.

(3) [1982]A C. 27 (H.L.)

(4) Times Newspaper - 18th July, 1983.

(5) [1979] H.K.L.R. 543, at p.548.