Hung Chor Hung John v. Li Kwok Kin and Another

HCPI 251/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 251 OF 2009

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BETWEEN

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Coram : Before Master Marlene Ng in Chambers (Open to the public)

Date of Hearing : 2 November 2009

Date of Decision : 2 November 2009

Date of Handing Down Reasons for Decision : 10 November 2009

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REASONS FOR DECISION

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I.  Background

1.On 16 July 2007, Madam Chow So Hing (“Deceased”) was fatally injured in a traffic accident. Her younger son, as administrator of her estate, commenced the present proceedings to recover damages on behalf of her dependants under the Law Amendment Reform (Consolidation) Ordinance Cap.23 (“LARCO”) and for bereavement under the Fatal Accidents Ordinance Cap.22.

2.At the time of her death, the Deceased, who was 59 years old, was survived by inter aliaher elder son (“1^st Son”) and his wife (“1^st Son’s Wife”), the Plaintiff and his wife (“Plaintiff’s Wife”), 4 grandchildren (3 of whom were about 8½-9½ years old and 1 of whom was about 2½ years old) and the daughter of her sister (“Niece”) (about 12½ years old).

II.  Statement of Damages

3.It was pleaded in the Statement of Damages that since she retired in 1993 the Deceased devoted her time to look after her family, her younger sister and the Niece. After her sons got married and had children, she looked after her grandchildren and the Niece by doing housework and preparing meals for them for about 16 hours per day. The Plaintiff claimed that but for the accident the Deceased would have continued to do so until she was 75 years old given her good health and experience, so the overall multiplier for the LARCO claim should be 11. Thus, the pre-trial and post-trial loss of dependency would be (a) HK$10,000.00 x 26 months = HK$260,000.00 and (b) HK$10,000.00 x 12 months x 9 = HK$1,080,000.00.

III.  Answer

4.In their Answer, the 1^st and 2^ndDefendants disagreed that the Deceased would have continued to take care of her grandchildren and the Niece and to take up housework until she was 75 years old. The Defendants argued it was unreasonable to expect a person of her age to work from 6:00 am to 10:00 pm until she was 75 years old in a household sufficiently well-off to employ a helper. Hence, even on a multiplicand/multiplier approach, an overall multiplier of 11 was grossly excessive. In any event, the 1^st and 2^ndDefendants contended that the Plaintiff’s claim for dependency was misconceived since the Deceased did not work or earn income at the time of the accident, so at best there would only be a claim for loss of services for household and childcare services provided by the Deceased. A lump sum of HK$100,000.00 was said to be appropriate.

IV.  Undisputed heads of claim

5.For the other heads of damages, namely, bereavement of HK$150,000.00 and funeral expenses of HK$72,603.00, theyare agreed by both parties. Further, assuming that the multiplicand/multiplier approach for loss of dependency were considered to be the correct approach, there is no dispute between the parties as to the method for calculating interest on any damages that may be awarded.

V.  Plaintiff’s witness statement

6.According to the Plaintiff’s witness statement dated 1 September 2009, the Deceased lived with the Plaintiff, but helped to look after the Plaintiff’s family, the 1^st Son’s family and the Niece.

7.For every day of the week except Sunday, the Deceased would leave home at 6:00 am to go to the 1^st Son’s home that was about 15 minutes’ walk away to cook breakfast for the 1^st Son and to feed his children. The 1^st Son’s Wife was a nurse who worked on shift, so if she was on morning shift she would leave home at 6:00 am and have her breakfast on her way to work. The 1^stSon would leave for work at 6:45am after breakfast. The Deceased would feed the 1^st Son’s son and daughter, and at 7:45 am she would carry the 1^st Son’s daughter with her to take the 1^st Son’s son to school.

8.In the meantime, at 6:30am the Plaintiff’s Wife would prepare breakfast for the Plaintiff, their 2 daughters and the Niece. The Plaintiff would go to work at about 7:15 am, and the Niece would goto school at 7:45 am. The Plaintiff’s Wife would take her 2 daughters to school, and at 8:30 am meet up with the Deceased to collect the 1^st Son’s daughter totake her home.

9.Whilst the Plaintiff’s Wife did housework at home, the Deceased would buy food in the market and return home at 10:00 am. Then she would go to the 1^st Son’s home to do housework there before returning home at 11:30 am. Then, the Deceased and the Plaintiff’s Wife (who would take the 1^st Son’s daughter with her) would separately deliver lunch to the schoolchildren. The Deceased, the Plaintiff’s Wife and the 1^st Son’s daughter would have lunch at home at 12:30 pm.

10.TheDeceased and the 1^st Son’s daughter would have a nap at 1:30 pm whilst the Plaintiff’s Wife continued to do housework and prepare dinner. At 3:00 pm the Deceased would bring the 1^st Son’s daughter with her to collect the 1^st Son’s son from school and bring him back to the 1^st Son’s home for afternoon tea and homework. In the meantime, the Plaintiff’s Wife would collect her daughters from school and bring them home for afternoon tea and homework. By that time, the Niece would have returned home after school.

11.At 6:00 pm the Deceased would bring the 1^st Son’s children to the Plaintiff’s home and cook dinner whilst the Plaintiff’s Wife supervised the children’s homework. At 7:30 pm,the Plaintiff, the 1^st Son and his wife would come home for dinner. Thereafter the Deceased would do further housework whilst the Plaintiff’s Wife bathedthe children. At 9:00 pm,the 1^st Son’s family would return to their own home. At 10:00 pm,the Plaintiff’s family would retire for bed. During public holidays, the Deceased would still look after her sons’ families.

12.The Plaintiff claimed theydid not understand English and could not afford a domestic helper. Further, there were only 3 rooms in the Plaintiff’s home which made it difficult to have a live-indomestic helper, and it would cost another HK$5,000.00 per month to rent a room as accommodation for the domestic helper. Still further, a domestic helper could not serve 2 families, and the Plaintiff’s Wife could not have handled 5 children.

13.The Plaintiff claimed that after the accident the1^st Son’s family moved to his home. Heresigned from his job to look after both families, butliving together with the 1^st Son’s family brought disputes and disharmony. Further, the Niecewhose father had died returned to live with her mother who was a working parent, so she was not so well looked after as before,and her school grades slipped. Eventually the Plaintiff used up his savings and found a temporary job with unsteady income.

VI.  Summons

14.On 29 September 2009, the 1^st and 2^nd Defendants applied by summons to transfer this case to the District Court. The supporting affidavit by their solicitor of the same date reiterated the averments in the Answer and claimed that the families of the Plaintiff and the 1^st Sonwere financially able to employ a helper. Further, as the Deceased’s grandchildren grow up, they should be able to take care of themselves and be less dependent on the services allegedly provided by the Deceased. The 1^st and 2^ndDefendants’ solicitor estimated that damages would be in the region of HK$187,363.30 (ie loss of services ($100,000.00), special damages ($72,603.00) and interest ($14,760.30)). It was therefore argued that this case fell within the District Court jurisdiction.

VII.  Legal principles

15.There is no dispute that the Court of First Instance has power under section 43 of the District Court Ordinance Cap.336 to order a transfer of a case to the District Court if it appears that the case is likely to be within the jurisdiction of the District Court.

16.In Wong Miu Kwan v FPD Savills Property Management Limited formerly known as First Pacific Davies (HK) Ltd HCPI1061/2003, Suffiad J (unreported, 19 January 2005), it was held that in exercising such discretion the court should as a matter of practice consider the following matters:

(a)  in the absence of abuse, a plaintiff should be entitled to frame his case in the manner he wished;

(b)  at an interlocutory stage, it would not be proper for the court or a master to view the plaintiff’s claim in the same way as it would be viewed at trial by weighing the different evidence or by believing or disbelieving some or all of the evidence; that exercise could only be carried out when all of the evidence, cross-examination and submission had been heard, particularly where there were factual and/or other disputes between the parties, as for instance disputed expert opinion;

(c)  accordingly, the plaintiff’s case on quantum as framed by him ought to be viewed at its highest when determining the proper jurisdiction where the case should be brought.

17.Suffiad J reminded that contributory negligence should not be taken into account unless such contributory negligence had been admitted by the plaintiff in his pleadings.

VIII.  Issue

18.Since there is no dispute over (a) the amounts claimed in respect of bereavement and funeral expenses and (b) the method for calculating interest if loss of dependency as advocated by the Plaintiff is a correct formulation, it appears that the main issue is whether there is any prospect that any award for loss of the Deceased’s services (whether described as loss of dependency or loss of services) can sustain an overall claim for over HK$1,000,000.00.

19.For present purposes, there is no disagreement that on the Plaintiff’s case the dependants of the Deceased suffered some pecuniary loss as a result of loss of her gratuitous services, and that any damages recoverable under this head are not to be reduced to reflect the compensatory care given by the Plaintiff who has quitted work to look after the 1^st Son’s and his own families after the accident.

20.Again for present purposes, I shall assume that the Deceased’s household and childcare services prior to her death contributed to normal and loving upbringing to her grandchildren and the Niece and to maternal care to her sons, and that as a result of her death and loss of her care, her sons, their families and the Niece lost the anchorage which she could have been expected to provide. I also bear in mind that a housewife or a live-in grandmother does not work set hours, but is in constant attendance on the family (eg give instruction to children or grandchildren on matters essential to their upbringing).

IX.  Plaintiff’s case on loss of dependency

21.Mr Lam, counsel for the Plaintiff, submitted that the proper approach was set out in Daly v General Steam Navigation Co [1981] 1 WLR 120 which was applied by Suffiad J in Wong Choi Fung v Fung Kai Public School HCPI534/2004 (unreported, 14 February 2006), both cases being non-fatal cases.

22.In Daly, the plaintiff housewife suffered injury to her shoulder and became partially incapable of undertaking housekeeping duties. She ran her home with the assistance of her husband who lost his part-time earnings, but he did not employ home help. The Plaintiff sought damages in respect of the impairment to her ability to undertake housekeeping duties for the pre-trial and post-trial periods based on the estimated cost of employing domestic help necessary to make good her own inability to undertake all the work needed to be done in and about the household.

23.The Court of Appeal held that in respect of the pre-trial period, it was not a correct method of evaluating the partial loss of capacity (which was essentially an element in the plaintiff’s general damages for pain, suffering and loss of amenities) to take the figure which it would have cost to employ someone whom the plaintiff had not in fact employed. Thus a sum was added to the award for pain, suffering and loss of amenities to reflect the partial loss of housekeeping capacity up to the date of trial.

24.As for future loss, Bridge LJ said at p.127 as follows:

“…… Once the judge had concluded, as this judge did, that, to put the plaintiff, as far as money could do so, in the position in which she would have been if she had never been injured, she was going to need, in the future, domestic assistance for eight hours a week, it seems to me that it was entirely reasonable and entirely in accordance with principle in assessing damages, to say that the estimated costs of employing labour for that time, for an appropriate number of years having regard to the plaintiff’s expectation of life, was the proper measure of her damages under this heading. ……” (my emphasis)

25.It is clear from the judgment that evidence of the plaintiff’s intention to employ such home help is not required, and the court recognised the plaintiff’s freedom in using the money received. Thus, Bridge LJ said at p.127 as follows:

“…… It is really quite immaterial, in my judgment, whether having received those damages, the plaintiff chooses to alleviate her own housekeeping burden, which is an excessively heavy one, having regard to her considerable disability to undertake housekeeping tasks, by employing the labour which has been taken as the basis of the estimate on which damages have been awarded, or whether she chooses to continue to struggle with the housekeeping on her own and to spend the damages which have been awarded to her on other luxuries which she would otherwise be unable to afford.”

26.In short, in respect of damages for loss of services for future years, Daly adopted a multiplicand/multiplier approach based on the cost of employing home help. The court uses such cost as a check in assessing the pecuniary value of the services provided by the injured person, but it is irrelevant whether home help is in fact employed after the accident or not is irrelevant.

27.In Wong Choi Fung, Suffiad J followed Daly by disallowing the multiplicand/multiplier approach for pre-trial loss of gratuitous services especially when such approach created an astronomical figure. The learned judge would only have increased the award for damages for pain, suffering and loss of amenities if the plaintiff succeeded in establishing an entitlement to a claim for gratuitous services.

28.In Fung Wai Han v Hui Chik Keung & anor [2006] 4 HKLRD 549, a case not cited by Mr Lam or Ms Fung, the plaintiff was scalded by boiling congee and sought damages for her loss of housekeeping ability during the pre-trial period on the basis of 2 hours of housework per day for the first 5½ years after the accident and 1 hour per day for the subsequent 1¾ years. But in fact the plaintiff did not employ anyone to do housework during the pre-trial period. Although Suffiad J eventually disallowed the claim for loss of services, he referred to Daly and held that the plaintiff could not claim on the proposed basis since she had not paid for extra help during the pre-trial period. Such loss was to be taken into consideration and included as part of the general damages for her loss of amenities.

29.But does Daly apply to loss of services for a killed instead of injured provider of gratuitous services, so that the multiplicand might be assessed on the basis of the cost of substitute domestic help even though as a matter of fact such home help was not employed after the accident?

30.In Regan v Williamson [1976] 2 All ER 241, a married woman was killed in a traffic accident leaving young children. After the accident, the husband engaged the services of the deceased’s aunt as housekeeper. Watkins J was of the view that in assessing the pecuniary value of the deceased’s services which the husband and children lost in consequence of her death, the court should not construe the word “services” too narrowly. In that case, the judge took into account the overall services of the deceased to the family, and increased the financial dependency figure of £12.50 per week to £20 per week to reflect such loss of services.

31.In Hay v Hughes [1970] QB 790, a case cited in Spittle & ors v Bunney [1988] 3 All ER 1031 (see paragraph 34 below), both parents were killed leaving 2 young children who were taken in to live with their grandmother. There were claims for loss of dependency on the father and loss of services of the mother. At first instance, the loss of the mother’s services was valued at £15 per week, being the cost which would have been incurred by the father in employing a housekeeper if he had not himself been killed. This sum was given a purchase of 9 years and eventually assessed at £8,500.

32.The Court of Appeal held that the children benefited from the generous action of their grandmother, which was the result of her decision after the accident to take them into her care and not the result of their mother’s death, so the value of the grandmother’s services need not be brought into account in diminution of damages.

33.Since Hay, the English courts often valued loss of services of a deceased parent by assessing the money’s worth of a notional nanny or housekeeper even though one would not actually be engaged or the family circumstances would not have allowed the same.

34.At the hearing, I referred Mr Lam and Ms Fung to the case of Spittle where the parties took different approaches to valuing lost services. The defendant suggested using the cost of fostering care for the children following an obiter comment by Ormrod J in Hay (p.275), but the plaintiff relied on the cost of a notional nanny. The court below arrived at a sum of £47,000 for lost services by adopting the plaintiff’s calculations for the cost of a notional nanny and a multiplier of 11. The Court of Appeal reduced the award to £25,000 by reducing the multiplicand by unspecified amounts.

35.At page 1037, Croom-Johnson LJ explained the usual adoption of what he called “the ‘nanny’ formula” as follows:

“…… Where a very young child is orphaned, and no substitute is provided, there is a practice of valuing the lost services of the mother by having regard to the cost of hiring a nanny.  It is not a measure which is satisfactory in every case, but is one which is usually adopted, presumably because the legal profession or litigants have so far been unable to think of anything better. It was used in Hay v Hughes. ……”

36.Interestingly, in Hayden v Hayden [1992] 4 All ER 681, it was held that the father undertook most of the mother’s responsibilities after her death, so there was no loss to the child in this respect. But I referred Mr Lam and Ms Fung to R v Criminal Injuries Compensation Board ex parte K (Minors) & ors [1999] QB 1131 which distinguished Hayden.

37.In Criminal Injuries Compensation Board ex parte K (Minors), a mother of 3 young children was murdered by her husband, and after her death the children were looked after by their uncle and aunt. The Criminal Injuries Compensation Board considered itself bound by Hayden to hold that as the general parental services provided by the uncle and aunt were at least as good as those provided by the mother, the children suffered no loss apart from the value of the mother’s individual care as a mother in respect of each child.

38.The Board’s decision was quashed on judicial review. It was held that the Board should have disregarded the value of the replacement services by the uncle and aunt, and compensated the children for the full value of the loss of their mother’s services. Hayden was distinguished on the ground that the replacement services in that case were provided by the child’s father who was the tortfeasor and so could not be said to have resulted from the death.

39.I also referred Mr Lam and Ms Fung to Lewis v Osbourne & ors Lexis-Nexis transcript (unreported, 4 July 1995). In that case, there was a claim for the child’s dependency on her deceased mother who was killed when she was a little more than a year old. Sedley J approached the case, as the courts have done in the above authorities, as a jury using the unchallenged market calculations before him as a fair representation of the costs of hiring a nanny “as a check, but no more, on [his] evaluation”. He came to the view that a fair sum to represent the pecuniary loss caused to the child by the death of her mother was £40,000, but such sum was reduced to £30,000 on account of the mother’s contributory negligence.

X.  Defendant’s case on loss of services

40.On the other hand, Ms Fung referred me to Wong Sau Kam & anor v Shum Yuk Fong HCPI798/1998, Suffiad J (unreported, 11 October 2001), which was a fatal case. The plaintiff claimed for loss of service by the deceased (as a handyman around the house and in helping generally with the children and with work about the house) at HK$500.00 per month for the whole pre-trial period. The learned judge accepted the defendant’s submission that loss of gratuitous service was general in nature and a lump sum of HK$60,000.00 was awarded. In my view, such approach is not inconsistent with Daly which disallowed any award for pre-trial loss of services that was separate and distinct from damages for pain, suffering and loss of amenities.

41.Ms Fung cited 4 other cases concerning fatal accidents which suggested that a lump sum rather than a multiplicand/multiplier approach should be adopted.

42.In Cheung Wai Ping v Chan Yuen Yee HCPI668/2005, Deputy Judge Muttrie (unreported, 8 February 2007), the widow gave evidence that the deceased had assisted her generally with housework and did minor handyman repairs. As a result of an accident, the plaintiff was reduced from being able to provide normal gratuitous services of a husband to his wife and family to one who could not do anything meaningful but must be looked after all the time. The learned judge awarded HK$80,000.00 for loss of services.

43.In Chan Wing Wan and Yip Yiu Yin, the administratrices of the estate of Leung Hoi Sung, deceased & anor v Honest Scaffold General Contractor Company Limited & anor HCPI1267&1269/1996, Master B Kwan (unreported, 4 July 2000), the court was satisfied that the 2 deceased fathers had provided household and childcare services for children who were deprived of the love and attention of caring fathers. The court awarded lump sums of HK$200,853.90 and HK$158,921.00 respectively for loss of services.

44.In Chan Ki & anor v Travel Trade Communication Network and Marketing Services Ltd HCPI343/1995, Master Cannon (unreported, 11 March 1998), it was held that the widower could not claim for loss of services because of his claim for bereavement, but in respect of the children, Master Cannon awarded the agreed sum of HK$28,000.00 for loss of their mother’s services to be divided equally between the 4 of them.

45.In Lee Hang Kuen the administratrix of the estate of Yim Ngo Ho, deceased v Chan Hong trading as Chan Hong Kee & anor HCPI548/2002, Deputy Judge Muttrie (unreported, 20 February 2006), the plaintiff claimed HK$2,000.00 per year for 20 years for do-it-yourself work which the deceased would have performed. The learned judge allowed a sum of HK$24,000.00.

46.Ms Fung submitted that the above awards were all lump sums of nominal amount and nowhere near the level of the Plaintiff’s claim in the present case.

XI.  Analysis

47.For loss of services, the court essentially adopts an award that reflects for better or for worse quantification of an irreplaceable human loss in monetary terms (see Hay and Lewis). Even on the English authorities, it is clearly recognised that the issue of loss of services is a jury question, and any multiplicand/multiplier approach by adopting the “nanny” formula isonly a starting point. Indeed, Lord Edmund Davies in Hay at p.268 said as follows:

“The editors of Clerk and Lindsell are right in saying that, although some arithmetical calculations are necessarily involved in the assessment of the loss in such cases as the present, much of the calculation must be in the realm of hypothesis.  As Holroyd Pearce LJ said in Daniels v Jones, arithmetic is a good servant but a bad master.  The loss suffered by the dependants must be assessed as best as they can in the light of their particular facts.  But, having done his arithmetic, there comes a stage when the judge has to stand back and look at the result.  When he does so, he should bear in mind the wise words of Willmer LJ who said in the last mentioned case: ‘In what is essentially a jury question the over-all picture is what matters. It is the wood that has to be looked at, not the individual trees.’ ……”

48.This is also reflected in the case of Stanley v Saddique [1991] 1 All ER 529, which is referred to in Lewis and Criminal Injuries Compensation Board ex parte K (Minors). In that case, the child’s parents were not married. On the death of the mother, the father took full responsibility for the child and soon remarried. The evidence showed that the stepmother was likely to be a much better parent than the deceased. The court rejected the defence contention that the benefit of care given by the stepmother cancelled out loss of the mother’s services, and the multiplier/multiplicand method of assessment based on evidence of the cost of hiring a nanny/housekeeper was used even though such would never have been employed given the circumstances of the deceased.

49.The court below adopted a diminishing multiplicand and a multiplier of 12, and assessed the damages for loss of services at £24,000. But the Court of Appeal reduced the sum to £10,000 based on the factual finding that the deceased was a bad mother and extremely unreliable. At p.540, Purchas LJ said that the matter of loss of dependency was a jury question, and that “…… the duty of the court is to do the best it can to arrive at some figure which a jury might well have awarded had it been taken into account all the circumstances. I consider that such was the lack of steady prospect of support that the multiplier/multiplicand approach is, as the judge indicated at one point in his judgment, quite inappropriate, although in the event he carried out an exercise of this kind. ……”

50.Given the nature of the present application and the guidance in Wong Miu Kwan that the court should take the Plaintiff’s case on quantum as framed by him at its highest, whilst not in any way necessarily accepting that the multiplicand/multiplier approach as suggested by the 1^st and 2^nd Defendants is correct for the purpose of trial, for present purposes I am prepared to consider the potential quantum for loss of the Deceased’s services on such basis. In doing so, I bear in mind the above reminders by Lord Edmund Davies and Purchase LJ in Hay and Stanley respectively, but it does not mean the court will leave the case over to trial even where there is no prospect that damages will exceed HK$1,000,000.00.

51.In respect of the multiplicand, Ms Fung submitted that the value of the Deceased’s services should be compared to that of a full-time domestic helper at no more than HK$3,400.00 per month. The adoption of the “nanny” formula is in fact consistent with the assessment for future loss of services in Daly cited by Mr Lam, and in the line with the subsequent English authorities outlined above.

52.It is common knowledge that the prevailing minimum allowable wage for a live-in full-time foreign domestic helper is HK$3,580.00 per month. Whilst not in any way conceding that the multiplicand should be anything less than HK$10,000.00 per month, Mr Lam reminded that the cost of such domestic helper should include additional costs, such as agency fees, costs of health check, insurance charges, air-fares, medical fees, cost of the helper’s board and cost of substitute helper during annual holidays, etc.

53.Mr Lam also argued there should be added the further cost of renting accommodation for such helper at HK$5,000.00 per month. The basis for this is the Plaintiff’s assertion in his witness statement that his home is too small for having a live-in helper. There is no dispute that the Deceased lived at the Plaintiff’s home before her death, and it is said that the Niece moved away from the Plaintiff’s home after the death of the Deceased. But the Plaintiff’s witness statement went on to say that the 1^st Son’s family (ie a family of 4) actually moved into his home after the accident. It is quite impossible to imagine howthe Plaintiff’s home could somehow have accommodated 2 further adults and 2 further children but not 1 helper.

54.In any event, the Plaintiff’s complaint is misconceived. As explained above, whether the family circumstances/finances would or would not have allowed a domestic helper to be engaged is irrelevant because the court’s function is not to determine the cost of replacement services but, as Sedley J put it in Lewis, “to put a cash value on the lacuna in parenting caused by a mother’s [in the present case a grandmother’s] death”. For the same reason, it is likewise irrelevant that the Plaintiff did not actually employ a helper after the accident because he could not afford one for various reasons, including lack of accommodation space, poor family finances, etc.

55.I also bear in mind Ms Fung’s submissions that the multiplicand would diminish as the Deceased’s grandchildren and the Niece grow older, and hence the scope and nature of the Deceased’s services would havechanged and/or reduced over time. This argument finds support in Spittle. Croom-Johnson LJ said as follows at page 1040:

“For reasons which I propose to give, when one looks into the future at the prospective value of a mother’s services to a child then still at the tender age of three and a half, one cannot value them at a constant figure for the whole of the child’s dependency.  Still less can one value them by taking services, such as those of a nanny, which for a time are closely analogous but cease to be so as time goes on, and simply to go through an arithmetical exercise in which the multiplicand (the nanny’s wages) are automatically increased year by year to keep up with actual or anticipated inflation.  There are cases where the dependency may be expected to vary, and where the remedy is an adjustment in the multiplicand. ……

……

What [the jury] ought also to be reminded is that as children get older they may also get more independent of their parents and less in need of being looked after.  In the early years the services rendered by a mother to her small child may be valued by the cost of a hired nanny.  The requirements are to some degree comparable.  As the child grows older, and reaches school age, the valuation by commercial standards become less and less appropriate, and to use them is again not comparing like with like.  Once the child has begun school, at least by the age of six, the extent of the services decreases in amount.  She needs, for a time, to be taken to and from school. Later on, she may go there by herself.  Not only is the yardstick of a nanny’s wage less appropriate, but the services rendered by the mother change in nature.” (my emphasis)

56.The Deceased was 59 years old at the time of her death. The Plaintiff argued that but for the accident the Deceased would have rendered gratuitous services for her sons’ families and the Niece until she was 75 years year old. By that time, the Niece will be about 28½ years old, 3 of the Deceased’s grandchildren will be about 24½-25½ years old and the remaining grandchild will be about 18½ years old. It is extremely difficult to imagine that they would have needed full-time care by the Deceased as outlined in the Plaintiff’s witness statement during a better part of the future years.

57.Indeed, the Plaintiff’s witness statement does not say that at the time of the Deceased’s death an adult was required to take the Niece to and from school, and the substantial time spent by the Deceased each day on such task and in shuttling her grandchildren between the Plaintiff’s and the 1^st Son’s homes would not have been required when they enter secondary school in a few years’ time. As regards the 1^st Son’s daughter, once she reaches school age she also would not have required constant care by the Deceased and/or the Plaintiff’s Wife, and it would not have been necessary to carry her around all the time.

58.Further, the Plaintiff’s Wife is a housewife. As the children grow older, they will require less childcare services,and no reason has been put forward to suggest that the Plaintiff’s Wife will not be able to cope with most of the household and/or childcare tasks which she previously might not have been able to manage on her own with 5 young schoolchildren underfoot. Mr Lam submitted from the Bar table that she might look for a job in future, but the Plaintiff’s witness statement that sets out the factual witness evidence for trial makes no mention of such intention.

59.In my view, there is a clear and strong case for a reducing multiplicand that is likely to diminish more steeply as time passes. Mr Lam’s suggestion of a mere reduction of 2-3 hours per day in respect of the Deceased’s services for the latter part of the future years is, in my view, unrealistically conservative.

60.Taking into account the above matters and adopting a generous approach in view of the nature of the present application, and using the “nanny” formula (ie adjusting the prevailing minimum allowable wage of a domestic helper by adding additional associated costs), but reducing the multiplicand due to diminishing services over the future years, I am of the view there is no prospect of the average multiplicand over the whole period to exceed HK$5,000.00 per month. I hasten to add that this is not a definitive view binding on the parties at trial, but one that leans in favour of the Plaintiff for the purpose of the present application.

61.But Mr Lam disagreed and submitted that whether such sum was reasonable or otherwise was a matter for the trial judge. He argued that the sum of HK$10,000.00 per month was not a fanciful amount given the Deceased’s long hours of service each day. Although I am to take the Plaintiff’s case on quantum as framed at its highest, I do not agree that for present purposes the court is bound to accept whatever multiplicand figure that is pleaded.

62.Mr Lam submitted that judicial notice could be taken of government statistics in respect of average monthly salaries of general workers in the commercial sectoras they usually worked long hours, and this would be a useful yardstick for assessing the multiplicand for loss of services of the Deceased, and that in doing so the court would see its way to accepting HK$8,000.00 to HK$10,000.00 as reflecting the monthly earnings of such general workers. He argued that it would be unfair for the court to take note of the minimum allowable wage of a foreign domestic helper but not the average wage of general workers.

63.I see no reasonable comparison between the fixed minimum allowable wage for a foreign domestic helper and the flexible market-driven commercial fluctuation of earnings of general workers in variedbusiness sectors. Even more fundamentally, I see no basis for adopting the earnings of any worker in a commercial setting as a check for valuing household and childcare services of the Deceased. As Croom-Johnson LJ said in Spittle, this is not comparing like with like (see paragraph 55 above). Mr Lam also has not explained why, even taking the Plaintiff’s case as framed to the highest, this court should deviate from the “nanny” formula adopted in Daly(which he relies) and in the line of subsequent English authorities. Certainly Mr Lam has not cited any authority for adopting the cost of employing general workers in a commercial setting for valuing gratuitous household and childcare services. In my view, even though the assessment of damages is ultimately a matter for the trial judge, the claim for a multiplicand of HK$10,000.00 per month is fanciful and not useful “as a check”.

64.Ms Fung drew the court’s attention to Chan Yee Mei, the administratrix of the Estate of Leung Mei Kuen, deceased v Leung Chi Fei HCPI370/2006, Deputy Judge Muttrie (unreported, 26 January 2007). In that case, the deceased aged 72 years was killed in a traffic accident. Prior to her death, she performed gratuitous childcare and other services for her grandchild. She lived with her daughter, her husband, their 9 year old son and their domestic helper. The court found that at most the deceased supervised and instructed the helper, and did what any grandmother would do for her grandchildren but not exactly child-minding services. The learned jude said as follows:

“40. As to the plans for the future, no doubt the family would have to make arrangements to look after the new baby, but I do not think it would be reasonable to expect a 72-year old grandmother to do everything for the baby, in a household sufficiently well-off to employer a helper.  Madam Chan says that part-time help was found, but that is the sort of thing that might be expected anyway.

41.  I am not satisfied that the Deceased performed duties equivalent to those of a full-time domestic helper or that, as a result of her death, it has been necessary to employ someone to replace her services.  If I had been so satisfied I would still have considered a multiplier of 10 to be wildly excessive given the Deceased’s age.

42. I accept that the Deceased made herself generally useful to the Wongs and their first child, and to her other children and their families as a grandmother.  I think her services would have some value but that only a nominal award is appropriate. I award $40,000.”

65.In light of the above observations, Ms Fung argued that it was unreasonable to expect the Deceased to continue to work for 16 hours a day until at least 75 years old, and the overall multiplier of 11 was consequently excessive. Even if the Deceased were to provide her services until the age of 70 years, Ms Fung submitted it was most unlikely that any overall the multiplier would exceed 5.

66.Mr Lam distinguished Chan Mei Yee by saying that the Plaintiff’s and the 1^st Son’s families were apparently not sufficiently well off to employ a helper, so the Plaintiff had to quit his job to do housework. Given the Deceased’s age at the time of her death, the nature of her services and the age of the grandchildren and the Niece, in my view an overall multiplier of 11 is prima facieon the high side. But without accepting that such overall multiplier of 11 is appropriate, I am prepared to use the same for the purpose of the present application.

67.On the basis of the above analysis, taking a multiplicand of HK$5,000.00 per month and an overall multiplier of 11, I cannot see how any award for loss of services even on the basis of a generous approach can exceed HK$660,000.00. I have borne in mind the admonition in the English authorities to “stand back and look at the result”, and in doing so I see no basis for changing my view.

68.As explained above, the sums for bereavement and funeral expenses of HK$150,000.00 and HK$72,603.00 respectively are not disputed. As regards interest, I assume thetrial will take place in January 2010, so the pre-trial period is 30 months. Thus, the interest claim will be about HK$11,904.12 (ie ([HK$5,000.00 x 30 months] + HK$72,603.00) x 4% pa = HK$8,904.12 for special damages and HK$150,000.00 x 2% pa = HK$3,000.00 for bereavement). In the circumstances, the Plaintiff’s claim for damages taken to the highest would not have exceeded the District Court jurisdiction.

XII.  Conclusion

69.So at the hearing I directed that the case be transferred to the District Court and that the parties do within 14 days of such transfer jointly apply to the PI Master in the District Court to restore the Check List Review so as to set the case down for trial.

70.There is no reason why costs should not follow event. So at the hearing I have also ordered the Plaintiff to pay costs of the application (including all costs reserved, if any) to the 1^st and 2^nd Defendants to be taxed if not agreed. It goes without saying that such costs are on High Court scale. As regards the costs of the whole proceedings, I shall reserve the scale of costs for determination by the District Court (see section 44A of the District Court Ordinance Cap.336).

XIII.  Postscript

71.I should take this opportunity to remind parties and practitioners of Part L of Practice Direction 18.1, and in particular paragraphs 96-97 therein:

“96.  The PI Judge or PI Master may transfer an action commenced in the Court of First Instance to the District Court pursuant to section 43 of the District Court Ordinance (Cap. 336) where he considers that the maximum amount of damages likely to be awarded to the Plaintiff falls within the jurisdiction of the District Court.

97.  Where it becomes clear that a case is within the jurisdiction of a Court other than the Court where the action has been commenced, an application for transfer should be made as soon as possible.”

72.Where it is obvious or it becomes obvious that a personal injury case commenced in the High Court is within the District Court jurisdiction, and there is unjustified failure or refusal to promptly transfer the case to the District Court, the court will not hesitate to take such conduct into account on determining the issue of costs or even the basis of taxation of costs under Order 62 rule 5 of the Rules of the High Court.

Representation:

Mr Simon H W Lam instructed by Messrs Chan, Evans, Chung & To for the Plaintiff.

Ms Fung Oi Kwan of Messrs JSM for the 1^st and 2^nd Defendants.