Wong Yuk Chau and Another v. Tang Suk Yee and Others

CACV000013/1983

Headnote

Damages - where damages are claimed in respect of the "lost years" for the benefit of the estates of more than one person killed in the same accident, the duty of the court is to assess the proper award for each estate separately, and a "joint multiplier" giving a combined figure should not be applied.

Interest on general damages assessed in favour of a deceased's estate for the "lost years" should be divided into two parts: "pre-trial loss" on which interest should be awarded at half the appropriate rate, and "post-trial loss" on which no interest should be awarded.

Interest on general damages for non-pecuniary loss in fatal accident and personal injuries cases should continue to be awarded at the full economic rate (Pickett v. British Rail Engineering Ltd. [1980] A.C. 136 applied; Birkett v. Hayes [1982] 1 W.L.R. 816 not followed.

Pleadings - where an action is brought in respect of the "lost years" for the benefit of the estate of a deceased person under Cap. 23 and is not joined with a claim for dependants under Cap. 22, the statement of claim should contain sufficient particulars to show the defendant the case he has to meet and assist him to compute a payment into court, even though the damages claimed would normally be classified as "general".

Coram: Sir Alan Huggins, V.-P., Leonard V.-P. and Fuad, J.A.

Date of hearing: 3, 4 and 7 March 1983

Date of Reasons for Judgment delivered: 24 March 1983

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REASONS FOR JUDGMENT

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Fuad, J.A. :

1. This appeal concerns the assessment of damages by a Master under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23. At the conclusion of the hearing we allowed the appeal and remitted the matter to a different Master for the re-assessment of damages. We now give our reasons.

2. On the evening of the 30th August 1980 a tragic accident occurred. While Mr. Tang Man and his wife Madam Ko Sin were waiting at a bus stop, a bus mounted the platform upon which they stood and knocked them and others down. Mr. Tang Man died that day and his wife on the following day. Since neither had made a Will, on the 26th August 1981 their daughter, Madam Tang Suk Yee, brought an action in negligence against the driver and the owner of the bus for the benefit of their estates under Cap. 23. There was no claim for the benefit of any dependants under the Fatal Accidents Ordinance (Cap. 22). Negligence was admitted and the quantum of damages was assessed by a Master after hearing evidence.

3. It is necessary to refer to part of the pleadings. About damages, this is what the Statement of Claim had to say -

"8.    By reason of the matters aforesaid the said Tang Man deceased suffered serious injuries from which he died on 30th August, 1980, his expectation of life was considerably shortened and his estate has suffered loss and damage.

Particulars

At the time of his death the said Tang Man deceased was aged 58 years and enjoyed good health. He worked as a lift attendant earning $1,050 per month with double pay at the end of the year. Tang Man's daughter the Plaintiff herein contributed $800 per month to the household. Tang Man was able to save approximately $1,000 per month.

9.    Further, by reason of the matters aforesaid the said Ko Sin deceased suffered serious injuries from which she died on 31st August, 1980, her expectation of life was considerably shortened and her estate has suffered loss and damage.

Particulars

At the time of her death the said Ko Sin deceased was aged 51 and enjoyed good health. She worked as an assembly worker earning $624 per month with double pay at the end of the year.

Particulars of Loss and Damage

Funeral expenses of the deceased. $9,860

And the Plaintiff claims:

(a) damages under the Law Amendment and Reform Consolidation Ordinance Chapter 23.

(b) costs.

(c) interest on any damages at such rates and for such periods as the Court thinks just."

4. Two witnesses gave evidence before the Master. The first was Mr. Tang Man's former employer who said that Mr. Tang, then aged 57, had been engaged by his Company, on probation, as a lift attendant in August 1980. He did not envisage that Mr. Tang would have encountered any difficulties in successfully completing the three months' probationary period, and could have expected to have been employed until he reached the retiring age of 60; there was a possibility of an extension beyond the retiring age (up to the age of 65) depending upon performance. The witness added that had Mr. Tang still been with them at the date of the hearing (November, 1982) he would have been receiving $1,600 per month, the wages of all their lift attendants. Moreover, had Mr. Tang continued in his employment, in January 1981 he might have been promoted to be a building attendant at a salary of $1,700 per month ($1,800 per month at the date of the hearing). In cross-examination the employer said that he had not been asked about the current salary of their lift attendants until the hearing.

5. The second witness was Madam Tang Suk Yee who has since married but was, at the time of her parents' death, living with them. She gave evidence about the expenses of the joint household and said that she contributed $800 per month towards them. She thought she would still have been living with her parents had they not died because she was their only daughter and felt her husband would have agreed.

6. After setting out the facts and referring to the authorities cited to him, the Master said the following -

"I must therefore adopt that formula to the facts I have found in the present case, and assess the not income of both deceased during the lost years. Nine authorities were quoted to me by Mr. Hamblin in his contention that I should adopt a joint multiplier of 8 in respect of both deceased at their respective ages of 58 and 51. On the other hand Mr. Lim argued that I should arrive at separate multipliers in respect of Mr. Tang Man and his wife. Upon careful reflection I believe that Mr. Hamblin's proposal is fairer and I have no hesitation in selecting a joint multiplier of 8 in this case."

7. The Master then went on to make the assessment. He accepted that Mr. Tang would have been receiving $1,600 per month as a lift attendant at the date of the hearing, and $1,800 if he had been promoted. There was, he felt, a distinct possibility of promotion although he recognised that "this is somewhat speculative". He added "...approaching it from his known salary of $1,050 I will adopt a median figure of $1,425". To this figure he added a government pension of $409 per month. This is what the Master said about the pension -

"Objection was taken to the inclusion of this factor by Mr. Lim on the grounds that it was not included in the Statement of Claim. In my view this omission was in no way fatal to the inclusion of this claim; being satisfied that particulars of the pension came into the possession of the Director of Legal Aid at a later date. There was in fact no challenge to suggest that Tang Man was not a Civil Service Pensioner, and evidence of such pension payments was exhibited at the hearing. In my view these pension payments should be included in the computations to be made and I therefore now add $409 to $1,425 which makes $1,834."

8. To this figure of $1,834, the Master added Madam Ko Sin's earnings at $624 (no oral evidence was led about this, but it seems to have been accepted by the parties) and the daughter's contribution of $800 per month. Applying the "joint multiplier" he had selected, he arrived at a sum of $85,522 for the pre-trial period of 26 1/4 months. As regards the future, the Master assessed Mr. Tang's income at $1,800 wages, plus $409 pension; Madam Ko's earnings at $800 ("$624 but allowing for anticipated increases"); and to these sums he added the daughter's monthly contribution of $800. Thus he found the "future monthly income of the deceased couple" to be $3,809. The same multiplier applied to the post trial period of 69-3/4 months, came to $265,677, making a grand total of $351,199. The Master deducted $135,249 as "pre-trial and future outgoings" and reached a final figure for the "lost years" of $215,950. He awarded this sum; $15,000 to each estate for loss of expectation of life and joint funeral expenses of $9,860.

9. The Master also gave interest at 14% from the date of the service of the writ until judgment on the amounts awarded for the "lost years" and loss of expectation of life, and interest at 7% from the date of judgment until payment on the funeral expenses.

10. Mr. Pirie, who appeared for the Defendants before us, took a number of points into all of which we do not consider it necessary to go. One complaint was that the Master was wrong to select a joint multiplier. We must confess, at once, that we do not understand what the Master meant by saying that this was "fairer", and we mean no disrespect to Mr. Barretto, who represented the estates on this appeal, when we say that we were not persuaded by his efforts to maintain the Master's decision in this respect. We know of no authority that supports this approach; none of the authorities cited to the Master as apparently justifying a joint multiplier was cited to us. It is now well established that damages in respect of the "lost years" is recoverable for the benefit of a deceased person's estate. The principles do not differ where, as sadly happened here, a husband and wife living together die as a result of the same act of negligence. While for reasons of convenience only one action will be brought, the task of the court, it seems to us, is to assess the proper award for the loss of future earnings in respect of each estate. It need hardly be stated that in a case such as this (a very common set of circumstances) where the husband was somewhat older than the wife and earned considerably more than she did, the adoption of a joint multiplier may tend to inflate the total sum that a defendant will have to pay; indeed, arrival at a just assessment would be more by luck than good judgment.

11. The Master's approach, we feel, also led him into error on a matter which is fundamental in a case such as the present. When he was addressing his mind to the assessment of the "lost years" awards, had he made an assessment in respect of each estate separately he would have appreciated that neither husband nor wife would have been alive to contribute to the family's expenditure and therefore each would have been left with a smaller, what has come to be called, "free balance". And on the evidence, the Master might well have concluded that on her probable earnings, Madam Ko would have little, if anything, left after what she would have been likely to expend upon herself during the "lost years".

12. We reached the conclusion, therefore, that the entire basis upon which the Master made his awards was misconceived. We would have undertaken the task of making what we considered to be proper assessments for each estate were it not for a further matter which Mr. Pirie urged upon us, and this related to the Statement of Claim. Mr. Pirie says that the Defendants were caught by surprise since it was not pleaded that Mr. Tang had prospects of increased earnings at the time of his death; nor was mention made of his pension; these matters should have been pleaded or particulars supplied if they were to be allowed to inflate the damages, and no averment was ever made. He told us from the Bar that he would have to consider calling fresh evidence on the question of Mr. Tang's future prospects, if leave to amend were given. Mr. Barretto contended that paragraphs 8 and 9 went further than authority dictated and that since a "lost years" claim was a claim for general damages it was sufficient just to pray for such damages in the relief sought.

13. When objection was taken on this point by the Solicitor acting for the Defendants before the Master, in his reply the opposing Solicitor who made the submission now advanced by Mr. Barretto is recorded to have said "As a matter of safety I formally ask to amend revision of pre-trial period as special". Mr. Pirie contended that if leave had been considered, his clients would have had the benefit of appropriate terms which would necessarily have been imposed - terms which cannot now be to his benefit in view of the restrictions imposed as regards appellants by s.s.14 and 19 of the Legal Aid Ordinance, Cap. 91.

14. So far as we are aware, what must be contained in pleadings where they include a claim for a deceased's "lost years" has not previously fallen for decision by this Court. Nor has thecmatter been raised in a reported decision at first instance. We think that the reason for this is reasonably plain. The "lost years" award in respect of the estate of a deceased person was not recognised in Hong Kong until a decision was reached by the Chief Justice in January 1981. In the majority of cases there will be dependencies and claims under the Fatal Accidents Ordinance (Cap. 22) will be joined with a claim under Cap. 23. Where this happens then, of course, all the particulars that a defendant may reasonably expect will be given. The same can be said of a "lost years" claim made by a living plaintiff. In a fatal accident case under Cap. 22, by virtue of s.6 the plaintiff will state the age and state of health of the deceased; his income (after tax); his prospects of advancement and estimated future salary; the extent to which the deceased paid the outgoings of his household, including clothing etc. and holidays; any personal allowances made to members of his family - and their sexes and ages. Further particulars might well be supplied as and when needed, but there would be no need to amend the pleadings and where a claim in respect of the "lost years" is included, the defendant will have a very fair idea of the sort of case he has to meet.

15. On this matter we have derived great assistance from the decision of the English Court of Appeal in Perestrello E Companhia Limitada v. United Paint Co. Ltd., [1969] 1 W.L.R. 570. The facts need not detain us for we consider the principles enunciated by Lord Donovan are of general application. Since we respectfully agree with them, we can do no better than read what Lord Donovan had to say, starting at p.579 of the report -

"There is plenty of authority for the proposition that a plaintiff need not plead general damage; but since the expressions "special damage" and "special damages" are used in such a wide variety of meanings it is safer to approach this question by considering what a plaintiff is required to plead rather than what he is not.

The Rules of the Supreme Court are of no direct assistance. Ord. 18, r.7, requires that every pleading shall contain a summary of the material facts and by Rule 12 "every pleading must contain the necessary particulars of any claim..." By rule 15 "a statement of claim must state specifically the relief or remedy claimed. It follows that the necessity of pleading "damage" (meaning injury) or "damages" (meaning the amount claimed to be recoverable), if it arises at all, does so as an example of the general requirement of any statement of claim that it shall "put the defendants on their guard and tell them what they have to meet when the case comes on for trial" (per Cotton L.J. in Philipps v. Philipps (1878) 4 Q.B.D. 127, 139).

Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.

The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. "The question to be decided does not depend on words, but is one of substance" (per Bowen L.J. in Ratcliffe v. Evans [1892] 2 Q.B. 524, 529.

The same principle gives rise to a plaintiff's undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is "special" in the sense that fairness to the defendant requires that it be pleaded.

The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible.

The matter is clearly stated in Mayne and McGregor on Damages, 12th ed.(1961), p.813, para. 970, where the editors say:

"Special damage consists in all items of loss which must be specified by [the plaintiff] before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary and useful to warn the defendant of the type of claim and evidence, or of the specific amount of claim, which he will be confronted with at the trial."

The claim which the present plaintiffs now seek to prove is one for unliquidated damages, and no question of special damage in the sense of a calculated loss prior to trial arises. However, if the claim is one which cannot with justice be sprung upon the defendants at the trial it requires to be pleaded so that the nature of that claim is disclosed. As Lord Dunedin said in The Susquehanna [1926] A.C. 655, at p.661: "If the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question."

What amounts to a sufficient averment for this purpose will depend on the facts of the particular case, but a mere statement that the plaintiff claims "damages" is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendant is entitled to fair fair warning."

16. In a case where a claim for an estate in respect of earnings in the "lost years" is made, in our judgment, unless sufficient particulars are given, it will not be possible for a defendant to know what case he has to meet on the issue of damages - nor will he be able to calculate what sum he ought to pay into court. We agree with Lord Donovan that the circumstances of each case will govern the matter and not whether the damages fall within the categories of special or general damages as generally accepted. We will not attempt to lay down what will amount to a sufficient averment in these cases. We are confident that legal advisers will adopt a sensible practice. We would only indicate that the kind of particulars regularly given to support a claim under the Fatal Accidents Ordinance, suitably adapted, would normally be ample. We would emphasise that where a claim under the Law Amendment and Reform (Consolidation) Ordinance is joined with a claim under the Fatal Accidents Ordinance, we consider it likely (subject to the facts of a given case) that the particulars supplied in relation to the latter Ordinance will suffice for the former.

17. We are bound to say that we think it to be most unfortunate that the parties will have to bear the burden and expense of a fresh hearing, but we consider the Master should have given leave to amend and have imposed terms appropriate to the situation subject to the submissions made to him, or, in the unlikely event that he had felt it proper to refuse the application, he should not have allowed the evidence of the pension and of the future prospects of Mr. Tang to be led and thus not taken these factors into account when making his assessment.

18. When we intimated our intention to remit the case for the re-assessment of damages, Counsel invited us to consider the rates of interest which would be appropriate to the sums to be awarded. The courts in Hong Kong have consistently followed the decisions of the appellate courts in England as to the principles upon which interest is to be assessed and awarded in personal injuries and fatal accident cases. This, we think, is right because the entitlement to interest on damages awarded in such cases is founded upon legislative provisions which are now, to all intents and purposes, identical in both jurisdictions - s.3 of the United Kingdom Law Reform (Miscellaneous Provisions) Act 1934, as amended by s.22 of the Administration of Justice Act 1969; s.48 of the Supreme Court Ordinance of Hong Kong, as amended by item 1 of the Schedule to the Law Reform (Miscellaneous Amendments) Ordinance, Cap. 350. It is now well settled that no interest is given on general damages for loss of future earnings or earning capacity. It is also clearly established that where there is a judgment for damages under Fatal Accidents' legislation the award should normally be split into two parts - (i) the pecuniary loss already sustained at the date of the trial by the dependants, upon which interest is awarded at half the economic rate up to that date and (ii) the pecuniary loss which it is estimated the dependants will sustain from the date of the trial onwards, upon which no interest is awarded. (Cookson v. Knowles [1979] A.C. 556, modifying the guidelines set out in Jefford v. Gee [1970] 2 Q.B. 130). Moreover, no interest is allowed on damages awarded to a living plaintiff in respect of his loss of earnings during the "lost years" (Gammell v. Wilson [1981] 2 W.L.R. 248 and Pickett v. British Rail Engineering Ltd., [1980] A.C. 136).

19. The instant case is not precisely covered by these authorities but we entertain no doubt that the application of the principles upon which they were based points only in one direction. For this purpose, we see no difference in principle between the pecuniary loss suffered by the dependants of a deceased person and that sustained by his estate. We conclude therefore, that the guideline in this context should be that where a "lost years" claim succeeds for the benefit of a deceased's estate, the general damages so assessed should be divided into two - "pre-trial loss" and "post-trial loss". On the "pre-trial loss" interest should be awarded at half the appropriate rate up to the date of the trial. No interest should be awarded on the "post trial loss" part of the damages.

20. We now turn to consider the appropriate rate of interest on the award for loss of expectation of life. It will be recalled that the Master awarded interest at the full rate (of 14%) and in doing so he followed the accepted practice before the decision of the English court of Appeal in Birkett v. Hayes [1982] 1 W.L.R. 816. In that case the Court held that when awarding general damages for pain and suffering and loss of amenities a court should normally exercise its discretion under the relevant statute to award interest and order that the damages bear interest at the rate of 2% from the date of the writ to the date of the trial. We are told that some judges in Hong Kong have been following Birkett v. Hayes and some have not. It is obviously desirable that the practice should be consistent.

21. In Birkett's case the Court of Appeal felt bound by the decision of the House of Lords in Pickett v. British Rail Engineering Ltd. [1980] A.C. 136 to award some interest on general damages in personal injuries cases. In the latter case the trial judge had awarded interest at 9% on general damages for pain and suffering and loss of amenities. That rate of interest had been agreed by the parties. About interest, Lord Wilberforce said, at p.151 -

"I shall deal briefly with the other issues. As to interest on damages, I would restore the decision of the judge. This was varied by the Court of Appeal on the theory that as damages are now normally subject to increase to take account of inflation, there is no occasion to award interest as well. I find this argument, with respect, fallacious. Increase for inflation is designed to preserve the "real" value of money: interest to compensate for being kept out of that "real" value. The one has no relation to the other. If the damages claimed remained, nominally, the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same. Apart from the inflation argument no reason was suggested for interfering with the exercise of the judge's discretion."

22. On this point, in their speeches, Lord Salmon at p.158, and Lord Russell of Killowen, at p.164 briefly agreed with Lord Wilberforce. At p.164, Lord Edmund-Davies said -

"Although it was seemingly agreed by both sides before the learned trial judge that the sum of ￡7,000 was to carry interest at 9 per cent from the date of service of the writ (amounting to ￡787.50), the Court of Appeal ordered that no interest was to be payable upon the increased sum of &10,000. We have no record of what led to this variation in the trial judge's order, but we were told that it sprang from the Court of Appeal decision in Cookson v. Knowles [1977] Q.B. 913, 921, where Lord Denning M.R. said:

"In Jefford v. Gee [1970] 2 Q.B. 130, 151, we said that, in personal injury cases, when a lump sum is awarded for pain and suffering and loss of amenities, interest should run 'from the date of service of the writ to the date of trial.' At that time inflation did not stare us in the face. We had not in mind continuing inflation and its effect on awards. It is obvious now that that guide-line should be changed. The courts invariably assess the lump sum on the 'scale' for figures current at the date of trial - which is much higher than the figure current at the date of the injury or at the date of the writ. The plaintiff thus stands to gain by the delay in bringing the case to trial. He ought not to gain still more by having interest from the date of service of the writ."

My Lords, I have to say with great respect that the fallacy inherent in the passage quoted is in thinking that a plaintiff who, owing to inflation, gets a bigger award than he would have secured had the case been disposed of earlier is better off in real terms. But in fact the bigger award is made simply to put the plaintiff in the same financial position as he would have been had judgment followed immediately upon service of the writ. The reality is that the plaintiff in this case has been kept out of ￡7,000 until the date of judgment, and there is no reason why he should be deprived of the ￡787 interest awarded by the trial judge for the 15-month period between writ and judgment simply because a lesser sum than ￡7,000 might or would have been awarded had the case come on earlier. Furthermore, the suggestion that the defendant is prejudiced overlooks the fact that he has meanwhile had the use of the money."

23. Lord Scarman, at p.172, read the same passage from Jefford v. Gee referred to by Lord Edmund-Davies in his speech, and went on to say -

"In the instant case the Court of Appeal has followed its dictum, disallowing the interest granted by the judge on the damages for pain and suffering. My Lords, I believe the reasoning of the Court of Appeal to be unsound on this point. It is based upon a fallacy; and is inconsistent with the statute.

First, the fallacy. It is assumed that because the award of damages made at trial is greater, in monetary terms, than it would have been, had damages been assessed at date of service of writ, the award is greater in terms of real value. There is here a complete non sequitur. The cash awarded is more, because the value of cash, i.e. its purchasing power, has diminished. In theory the higher award at trial has the same purchasing power as the lower award which would have been made at the date of the service of the writ: in truth, of course, judicial awards of damages follow, but rarely keep pace with, inflation so that in all probability the sum awarded at trial is less, in terms of real value, than would have been awarded at the earlier date. In theory, therefore, and to some extent in practice, inflation is taken care of by increasing the number of money units in the award so that the real value of the loss is met. The loss, for which interest is given, is quite distinct, and not covered by this increase. It is the loss which is suffered by being kept out of money to which one is entitled.

Secondly, the statute. Section 22, Administration of Justice Act 1969, amending section 3, Law Reform (Miscellaneous Provision) Act 1934, provides that the court shall (my emphasis) exercise its power to award interest on damages, or on such part of the damages as the court considers appropriate, "unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages." Such is the general rule laid down by the statute, which does, however, confer upon the court a discretion as to the period for which interest is given and also permits differing rates. Nothing can be clearer than the duty placed upon the court to give interest in the absence of special reasons for giving none. Inflation is an economic and financial condition of general application in our society. Its impact upon this plaintiff has been neither more nor less than upon everybody else: there is nothing special about it."

24. In Birkett's case, Lord Denning and Eveleigh L.J. traced the history of interest awards on general damages in personal injuries cases and it is not necessary for us to rehearse that history. Lord Denning felt it was important to notice that the trial judge had assessed the award for pain and suffering and loss of amenities on the value of money at the date of the trial, nearly 5 years after the accident, as he was bound to do. He was thus awarding compensation for the past and for the future. During the relevant period, due to "racing" inflation, currency had not remained stable and thus the plaintiff had received ￡30,000. He could see no possible justification for giving her interest on that inflated figure for the 4-2/3 years, when she would not have been given it on an admitted debt of ￡20,000 (the amount Lord Denning assessed the plaintiff would have been awarded had the assessment been made at the date of the accident) due at the service of the writ. She had not been kept out of ￡30,000 during those years, but ￡20,000. Nor had the defendants had the benefit of the use of ￡20,000. Lord Denning then considered the effect of tax and concluded that if interest was to be awarded from the date of the service of the writ (as Pickett's case compelled), then "that interest should be very low indeed". Eveleigh L.J. referred to the passage from Lord Wilberforce's speech in Pickett's case that we have ourselves read and expressed the view that while Lord Wilberforce was saying that the two objectives were separate, he did not say that current rates of interest had no relation to inflation. Nor had he said what the compensatory rate of interest should be. Eveleigh L.J. felt it could not be disputed that current rates of interest had a large inflationary element. If damages were assessed on the basis of the value of the pound at the date of the writ, there would be an overwhelming case for the award of interest rates which carried an inflationary element. In Eveleigh L.J.'s view, it could not be right to apply such interest rates to an award which already took into account the need for preserving the value of money and another rate of interest must be looked for.

25. Eveleigh L.J. also referred to the altered incidence of tax since Jefford v. Gee had been decided, and went on to suggest that to award interest on this type of general damages as if it were a debt was to call upon the defendant to pay interest on a sum that was never demanded and which at the date of the writ was usually sheer guesswork. These considerations led him to the conclusion that a rate of interest appropriate to a debt was too high when applied to general damages.

26. We accept, of course, that in Pickett's case the House of Lords did not have to consider the rate of interest, but we note that Lord Edmund-Davies, when he expressly mentioned the amount of interest awarded, made no comment that had the rate not been agreed, a re-consideration of the principles was called for. With the utmost respect to the learned judges who decided Birkett v. Hayes their judgments do not, it seems to us, give effect to what their Lordships in the House of Lords were holding. We have in mind particularly the words of Lord Edmund-Davies where he said, at p.164, "The reality is that the plaintiff in this case has been kept out of $7,000 until the date of judgment, and there is no reason why he should be deprived of the [interest] ... simply because a lesser sum than ￡7,000 might or would have been awarded had the case come on earlier.", and what Lord Scarman had to say, at p.173, in the paragraph we had already read, which begins "First, the fallacy..." and ends "The loss... is the loss which is suffered by being kept out of money to which one is entitled."

27. In our respectful judgment, to follow Birkett's case would be to put a gloss upon the decision, and the reasons for it, of the House of Lords in Pickett's case, a decision by which (in view of the similarity of the relevant statutes and principles) we are bound. We can see nothing in the latter case that would justify a general approach to the award of interest (and thus to the rate of interest) upon general damages depending upon whether they are given in personal injuries cases or in other cases where general damages are awarded. Again, with respect, we can perfectly understand the views of those who consider it inappropriate to award interest at all upon amounts which are generally regarded as conventional sums but we think that this must now be regarded as a matter for the legislature. For the present, therefore, we consider that the guideline to be applied in Hong Kong is that general damages for pain, suffering, loss of amenities and loss of expectation of life should continue to be at the full economic rate. We emphasise that this is only a guideline and judges are free to exercise the discretion given to them by the statute. In particular we would mention that it would clearly be justified to consider reducing the period for which interest is awarded (from the date of service of the writ to the date of trial) or making a downward adjustment of the rate of interest, where the plaintiff has been responsible for unjustifiable delay in prosecuting his action.

28. It will be appreciated that since the instant case only concerned the award of interest for loss of expectation of life, what we have ventured to say about the rate of interest for pain, suffering and loss of amenities must be considered as obiter.

Representation:

N. Pirie (Johnson, Stokes & Master) for Appellants.

R. Barretto (Director of Legal Aid) for Respondent.