Maurice Andre Gensburger v. Evelyn Apryl Gensburger and Others
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CACV000018/1968 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 18 OF 1968 (Appeal from Divorce No. 113 of 1967) -----------------
Coram: Blair-kerr Pickering & Morley-John, JJ. in Full Court. Date of Judgment: 27 August 1968 ----------------- JUDGMENT ----------------- Pickering J.: 1. In March of this year the respondent to this appeal obtained a Decree Nisi of divorce on the grounds of the adultery of his wife with two named co-respondents. For the sake of clarity and ease of reference I shall call the respondent and the lady in question "the husband" and "the wife" respectively. In his petition for divorce the husband prayed for custody of the two children of the marriage and for damages in the amount of $50,000 against the two co-respondents. 2. Following the decree the learned judge dealt with the questions of custody and damages. In this appeal we are not concerned with the custody of the children except to note that such custody was awarded to the husband, with the wife being accorded reasonable rights of access to them. The appeal is confined to damages and is brought by the second co-respondent who claims that the award against him of damages totalling $40,000, is excessive and further, that the trial judge was wrong in law in trying the husband's claim for damages on the same principles and in the same manner as an action for criminal conversation. There is no appeal by the first co-respondent against whom the husband did not press the claim for damages once agreement had been reached upon the payment by the first co-respondent of a sum by way of costs. 3. It will serve to set the award of $40,000 against its proper background if I outline something of the history of the marriage as found by the trial judge:- 4. The husband and wife were married in Hong Kong in March 1956 and at the date of the hearing were about forty and thirty-three years of age respectively; the two children are a boy and a girl born respectively in 1959 and 1962. The husband is a jeweller and was described by the trial judge as a man of considerable means. The husband describes the marriage as very happy and he was shocked when, in July 1967, he was told by the wife that she had been committing adultery with the second co-respondent (the appellant herein) for some months. At that time she denied that she had ever committed adultery with any other man. In fact her adulterous association with the first co-respondent began in or around January 1965 and lasted for about a year while that with the second co-respondent began in or about March 1966 and persisted to the time of the hearing of the petition. 5. Some aspects of the domestic arrangements of the matrimonial home are relevant to this issue of damages. In the early stages of the marriage the couple employed a cook who eventually left them and at the time of the events which we have related only a general amah was employed. There was no children's amah and the wife did the cooking. The two children at one time attended a nursery school in Macdonnell Road which is the road in which the matrimonial home was situated. At the hearing on the issue of custody the husband said that if he was awarded custody of the children he would employ the lady who ran that school, a Mrs. Roxburgh, to look after them and both husband and wife agreed that Mrs. Roxburgh was an eminently suitable choice. It was the intention that she should look after the children in the afternoons and evenings, they being at school in the mornings. The husband said that he would have to pay Mrs. Roxburgh $600 per month for these services and that in addition, he would have to employ a cook. 6. In determining the broad basis upon which damages should be assessed, the learned trial judge referred to the case of Pritchard v. Pritchard & Sims(1) in which reference was made to the principles detailed in Butterworth v. Butterworth & Englefield(2) and set out the following portion of the judgment of Willmer L.J. in the later case:-
7. Dealing with the pecuniary aspect of the value of the wife the trial judge accepted the husband's estimate of a net pecuniary loss of $600 per month being the amount which he would have to pay Mrs. Roxburgh. The husband added that he would have to employ a cook and it would thus appear that in arriving at the net figure of $600 p.m. the husband simply balanced the cost of employing a cook against the monthly sum which he would save by no longer having to maintain a wife. Having accepted this estimate of $600 per month as the net pecuniary loss, the judge, taking into consideration that the younger child is six years old, applied a multiplier of five years and then scaled down the resulting figure to make allowance for the normal hazards of existence and the fact that the husband may re-marry. By this process he arrived at a figure of $30,000 which he awarded as the pecuniary value of the wife. 8. In view of the history of the wife's infidelities, the judge made no award for loss of the consortium of the wife. 9. As damages for injury to the husband's feelings the judge awarded $10,000. There was thus a total award of $40,000 against the second co-respondent and no award against the first. It is against the award of $40,000 that the second co-respondent now appeals. 10. At the outset of the hearing before us, Mr. Donnelly, for the appellant, sought leave, under O.59 r.10(2), to adduce fresh evidence. The evidence so sought to be introduced was to the effect that Mrs. Roxburgh had not in fact been looking after the children since the 6th of April 1968, on or about which date she had gone to Taiwan for Easter and that instead, a Miss Vivienne Worraloo, a young lady of about eighteen, was presently performing this duty and that on three afternoons a week only. It was said that Miss Worraloo's hours of attendance on those afternoons were from 2 p.m. to not later than 7 p.m. and that she was remunerated at the rate of $5 per hour or a maximum of $350 per month as a gainst the $600 per month paid to Mrs. Roxburgh on the basis of which figure the award of $30,000, representing the pecuniary value of the wife, had been based. It was further sought to adduce evidence from employment agencies to the effect that the current wage for an experienced full-time Chinese baby amah is $320 to $350 per month. 11. In support of his application, Mr. Donnelly referred to the cases of Curwen v. James(3), A.G. v. Birmingham, Tame and Rea District Drainage Board(4) and Ladd v. Marshall(5) and said that the fresh evidence sought to be adduced satisfied the requirements listed in that last case, that is, it could not have been obtained with reasonable diligence for use at the trial, it was such that it would probably have an important effect on the award of damages and it was credible evidence. 12. Mr. de Basto, for the husband, opposed the admission of this fresh evidence stating that the first requirement of Ladd v. Marshall(5) had not been met since evidence from employment agencies could very easily have been given at the trial; the figure of $600 had never been disputed at the trial and there was in any event no obligation upon the husband to employ a Chinese amah to look after children who had previously been cared for by their mother, a European. The normal rule, counsel said, adopting the words of Pearson L.J. in Curwen v. James(3), was that the sum of damages falls to be assessed once and for all at the time of hearing; although the learned Lord Justice was there referring to damages in accident cases, the same principle should apply and the decision to allow fresh evidence on appeal in that case was exceptional arising as it did from the re-marriage of the plaintiff widow within the time limited for appeal, a circumstance having a very direct bearing on the quantum of damages awarded to her under the Fatal Accident Act. Counsel referred also to the case of Jenkins v. Richard Thomas and Baldwins Ltd.(6) where Salmon L.J. said:
13. Counsel for the husband urged further that with the leave of the Court, the husband was that day taking the children out of the jurisdiction for a two-month holiday in Europe and suggested that it might well be the case that Miss Worraloo had been employed as a temporary expedient pending the planned holiday and that on their return the children might well return to the care of Mrs. Roxburgh or some other mature woman who could reasonably expect to be remunerated at a similar figure to Mrs. Roxburgh. 14. It appears to me that there are too many uncertainties and imponderables for this Court to feel any conviction that the fresh evidence sought to be adduced would be likely to have an important effect upon the award of damages - even if we were to accept it as credible if tendered. The learned trial judge adopted a multiplier of five years and what we are being invited to do is to look in isolation at a period of approximately three months at the maximum (it is not clear from what date it is suggested that Miss Worraloo was employed) during which the husband's expenses in regard to a companion for his children are said to have been not more than $350 p.m. Even if we were to accept that as being the case it would by no means follow that the husband will escape so inexpensively for the remainder of the five-year period. We have no means of knowing why Miss Worraloo apparently looks after the children for only three afternoons a week. Is it because she herself has other commitments which preclude her from more frequent attendance upon the children although the husband would prefer to engage her for six afternoons a week if she were available? We do not know if the arrangement is one about which the husband is entirely happy or is a mere temporary expedient adopted until more permanent arrangements can be made. I have already referred to the impending holiday in Europe and to the possibility that Miss Worraloo's engagement is a stop-gap expedient. Again, it is clear that though the figure of $600 per month was apparently accepted at the he aring, it was known at that time that Mrs. Roxburgh could not look after the children for the whole of the year, for the husband said in evidence "she travels to Bangkok sometimes during school holidays, and to other places perhaps". If it be the case that Mrs. Roxburgh went to Taiwan for Easter I do not know whether, and if so when, she returned to Hong Kong; and if she did return I do not know what arrangements, if any, have been made for her to resume her care of the children. If this Court were to hear the proposed evidence and accept it as true, we would certainly not be entitled to go further and assume that the care of the children would be entrusted, for the remainder of the five-year period contemplated by the learned judge, to Miss Worraloo or to some other person remunerated at the rate commanded by an eighteen-year-old girl working on a very part-time basis. 15. These are the considerations which lead me to say that the fresh evidence sought to be tendered would be unlikely to have an important effect upon the issue of damages and it was for that reason that I was a party to the decision to dismiss the application to adduce fresh evidence. 16. I turn now to the argument advanced for the appellant that the trial judge was wrong in law in trying the husband's claim for damages on the same principles and in the same manner as an action for criminal conversation. Mr. Donnelly based this argument on the fact that whereas Section 50 of the Matrimonial Causes Ordinance (Cap.179) substantially reproduces Section 41 of the English Matrimonial Causes Act 1965, sub-section (2) of Section 41 of the Act has been omitted from the provisions of Section 50 of the Ordinance. That sub-section reads as follows:-
17. Counsel told us frankly that the omission was one which had escaped him during the hearing in the court below and the point had not been taken before the trial judge. However, Mr. de Basto, for the husband, stated that he did not seek to rely upon the fact that the matter had not been argued in the court below. 18. Mr. Donnelly asks us to read considerable significance into the omission and suggests that if the action for criminal conversation survives to-day in Hong Kong, a husband claiming damages for adultery must elect either to proceed by way of writ under that common law action, in which case he must plead special damage, or he must petition under the Matrimonial Causes Ordinance. In the present case the husband had chosen the latter course and had not pleaded special damage. In the absence of any provision in the Matrimonial Causes Ordinance equating the principles to be adopted in assessing damages to those obtaining in the action for criminal conversation, what test was the Court to apply? Counsel submitted that damages could be given only for the affront to the husband and that special damages could not be awarded. 19. Moreover, the argument continued, the action for criminal conversation had not in fact survived in Hong Kong. The former Section 5 of the Supreme Court Ordinance providing, with certain exceptions, that such of the laws of England as existed on the 5th day of April 1843 should be in force in the Colony, had been repealed by Section 7 s.s.(1) of the Application of English Laws Ordinance (Ord.No.2 of 1966). Up to the date of that repeal the action for criminal conversation had subsisted in Hong Kong because the abolition of the action in England by S.59 of the Matrimonial Causes Act 1857 had never been extended to the Colony. The present position however, was governed by S.3 of the Application of English Laws Ordinance which provides, with certain exceptions, that the common law and the rules of equity (simpliciter) shall be in force in Hong Kong without any reference to any particular date at which such law and rules operated in England This brought the reference to the Common Law up to date and since there was no longer any action for criminal conversation in England it followed that no such action obtained to-day in Hong Kong. 20. That is a contention with which I entirely agree. 21. Mr. Donnelly argued further that because no action for criminal conversation obtained today in Hong Kong the principles used in assessing damages in such an action could not be brought into play in the Divorce jurisdiction of the Hong Kong Courts and it was open to the Courts to award damages only for the injury to a husband's feelings whilst there could be no damages loss of consortium or for any pecuniary loss flowing from the adultery and the deprivation of a wife. 22. Mr. de Basto, for the husband, contended that the learned trial judge had not in fact adopted the principles appropriate to an action for criminal conversation in assessing damages but had employed those laid down in Butterworth v. Butterworth(2) and Pritchard v. Pritchard(1). That appears to me, with respect, to be a distinction without a difference for the assessment of damages in those cases was based in the latter case upon the direction contained in S.41 ss.(2) of the Matrimonial Causes Act 1965 and in the former upon a similar direction such a direction having been contained in every Matrimonial Causes Act from and including that of 1857. 23. The direction, counsel argued, restricted the judges in England as to the manner in which damages were to be assessed. The effect of the omission in Hong Kong of any such direction was to give the judges in Hong Kong wider scope in the assessment of damages. In practice, they followed the method obtaining in England today which was that arrived at by McCardie J. in Butterworth v. Butterworth(2) and was the method adopted by the trial judge. It was a method entirely open to the Courts in Hong Kong on the plain construction of S.50(1) of the Matrimonial Causes Ordinance 1967 but even if that were not so S.10 of that same Ordinance would nonetheless lead the Court to the identical method. Section 10 provides:-
24. The effect of the phrase, "practice, procedure and powers", counsel submitted, was to incorporate ss.(2) of S.41 of the Matrimonial Causes Act 1965, with its reference to trial on the same principles as actions for criminal conversation, into the local Ordinance. 25. In parenthesis I would observe that S.3 of the 1956 Matrimonial Causes Ordinance referred to "principles" rather than "practice procedure and powers". That Section reads:-
26. I am not aware of the reasons for the change in terminology but it seems to me that the argument advanced before us would have been better supported by the former expression "principles" than by "practice procedure and powers"- which is not however to say that I consider the argument without merit in relation to the terminology now adopted in S.10 of the 1967 Ordinance. 27. Counsel also addressed argument to us to the effect that the Common Law action of criminal conversation still subsists in Hong Kong. I have already expressed my agreement with the contrary argument and I will refrain from detailing the submissions made to us as to the alleged survival of the action in Hong Kong. 28. I do not propose to dilate upon this ground of appeal relating to criminal conversation because, for my part, I am wholly unable to ascribe to the omission from the provisions of Section 50 of the local Ordinance of the direction contained in S.41(2) of the Matrimonial Causes Act 1965, the inference which the appellant's counsel asks us to draw. Ingenious as this ex post facto argument on damages is, it remains the case that S.50(1) of our Matrimonial Causes Ordinance enables a husband to claim damages on the grounds of adultery with his wife and that nothing in the section inhibits the method by which the Court is to calculate such damages. I can only observe that if there be a more appropriate way of calculating damages for the adultery of a wife than by the adoption of the classic formula detailed in Butterworth v. Butterworth(2) I am unaware of it. I agree with counsel for the husband that the effect of the omission in the Hong Kong Ordinance of any provision similar to that contained in S.41(2) of the Matrimonial Causes Act 1965 is not to debar a husband from receiving damages in respect of what has been called the pecuniary value of his wife but to enable the Court to assess those damages either upon the basis of damages for criminal conversation or upon some other basis should such appear more appropriate. To hold otherwise would be to render the reference to damages in S.50(1) of the 1967 Ordinance, largely nugatory. Nor do I consider that I need fall back upon S.10 of that Ordinance to lead me to the "practice, procedure and powers" obtaining in England because of any vacuum in the powers accorded to the Court by the Hong Kong Ordinance. The power to award damages is clearly conferred by S.50(1) of the Ordinance and those damages, upon ordinary principles, will normally represent the loss flowing from the act complained of, that is, the act of adultery and the loss of a wife. These are precisely the principles of Butterworth and Butterworth(2) and were the principles adopted in the Court below. 29. Accordingly I see no reason to dissent from the method of calculation of damages adopted by the learned judge. His application of that method however, which was also the subject of argument by Mr. Donnelly, does appear to me to have resulted in a higher figure of damages than the facts of the case warrant. 30. The award, as we have seen, was divided into two parts a sum of $30,000 being awarded in respect of the pecuniary value of the wife and a further sum of $10,000 as representing the injury to the husband's feelings. I will deal first with the figure of $30,000. 31. The trial judge arrived at this figure by accepting the husband's estimate of his net pecuniary loss as $600 p.m., being the amount be would have to pay to Mrs. Roxburgh for looking after the children and applying to that monthly sum a multiplier of five years thereafter scaling down the resulting figure to make allowance for the ordinary contingencies of life and the possibility of the husband's remarriage. There is no suggestion that any account was taken of the saving likely to accrue to the husband by virtue of the fact that following the decree he would no longer have to maintain a wife. This matter does not appear to have been explored. There was no cross-examination of the wife on behalf of the appellant as to the cost of her maintenance and such cross-examination as was addressed to the husband hardly touched upon that subject revealing only that the wife received a monthly cash allowance of $500 from the husband and the existence of charge accounts at two provision merchants and a large department store. No enquiry was made as to the cost of feeding and clothing the wife still less as to such matters as medical expenses, the cost and frequency of leave passages or other expenses which might now reasonably be thought to represent a not inconsiderable saving to the husband. 32. It appears to me to be manifest that, taken in isolation, any sum paid to a third party for looking after the children cannot accurately represent the net pecuniary loss to the husband. In order to arrive at that figure or any reasonable approximation of it some regard must be paid to the saving likely to be effected by the fact that the husband no longer has to support the wife. By inference all that appears to have been done in this respect is that apparently the cost of employing a cook has been put into the scales against the savings to which we have referred. I say "by inference" because whilst there is no mention at all in the judgment of the probable saving, the learned judge does comment that the petitioner claims that he will have to employ a cook and thereafter, and apparently deliberately, ignores the cost of so doing in his calculations. There is nothing on the record as to the probable cost of employing a cook though counsel on both sides agree that a figure of $400 p.m. was mentioned in that connection in the Court below. It would thus appear that the saving likely to accrue to the husband by virtue of not having to maintain the wife has been assumed to be $400 p.m. and it is appropriate to test that assumption against the evidence. 33. The learned judge commented that no serious attempt had been made to dispute the figure of $600 per month. Whether that observation was intended to imply that no serious attempt had been made to dispute that figure as the amount which would have to be paid to Mrs. Roxburgh or as the net pecuniary loss to the husband, I do not know. If the former, I would certainly agree. If the latter, I would have reservations for it appears to me that there was evidence to cast strong doubt upon this figure as the net pecuniary loss to the husband. Mr. de Basto asserted that this monthly figure had not been attacked in the Court below as inaccurately representing the net loss to the husband and that therefore it was incumbent upon us to accept the figure. I think the assertion that the figure was not attacked goes too far. Whilst the cost of maintaining the wife was, in my view, inadequately explored, such financial facts of life in the matrimonial home as did emerge from the cross-examination of the husband suggest that the figure was being attacked, albeit obliquely, as not representing accurately the net monthly loss to the husband. 34. Thus there was evidence that the wife received a monthly cash allowance of $500 and though the purpose of this allowance was not probed, the fact that the wife had charge accounts at two large provision merchants suggests that the money was not intended for day-to-day household expenses; nor could it have been intended for the payment of the amah's salary since the husband gave evidence that he handed the $500 to the wife on the same day that he himself paid the amah. I find the inference overwhelming that this $500 per month was a personal allowance to the wife who additionally had an account at Lane Crawford which the husband described as being "for anything she wanted" and which, on his evidence, was used to the extent of $300 to $400 a month. 35. I do not think that regard could legitimately have been paid in the Court below to the two charge accounts with provision merchants since they almost certainly existed to supply, not the personal needs of the wife, but the day to day requirements of the household. Merely on the basis however of the monthly allowance of $500 and a charge account which was utilised by the wife to the extent of $300 to $400 p.m. and ignoring the cost of food, clothing, hair-dressing and the other matters which I have mentioned, it is apparent that the monthly saving to the husband is, on the evidence, greater than the figure of $400 per month suggested as the likely cost of employing a cook. In the argument advanced to us there appears to have been some assumption that the cook would be a male and that therefore his monthly salary might well be more than $400 per month. We see nothing in the evidence to support the assumption that the cook would necessarily be a male and indeed in a household which includes two young children a woman might well be considered more suitable for the post: however that may be, there is no evidence before us as to the average monthly wage of a cook and I see no reason to depart from the estimate of $400 which, though it does not appear on the record, was agreed to have been made in the Court below. 36. We have no precise evidence as to what proportion of the $300 to $400 a month spent by the wife at Lane Crawford was spent upon herself or whether any part of it was spent upon the children or for household goods. The only evidence we have is the husband's statement that the account was "for anything she wanted". On the basis of that evidence it appears to me to be not unreasonable to adopt a figure of $300 per month as that which the wife spent at this store on herself. It follows that the saving to the husband represented merely by the termination of the cash allowance and the closure of this particular charge account is $800 a month. 37. On the other hand the husband's new and additional expenses are, on the evidence, likely to total $1,000 per month, that is, $600 p.m. the cost of having the children adequately supervised and $400 p.m. the cost of a cook. The adverse balance to the husband is thus $200 p.m. and not $600 p.m. and it is to this former figure that an appropriate multiplier must be applied. In the Court below the learned judge adopted a multiplier of five years on the basis that the younger child was then six years old and would probably require supervision for a further five years. It would be inappropriate for me, in this Court, to arrive at a multiplier on that same basis since whereas the trial judge was concerned solely with a monthly figure of net loss which was exclusively based upon the probable cost of supervision of the children, the figure of monthly net loss at which I have arrived is compounded partly of that element but partly also of the cost of employing a cook and of the benefit obtained from the cessation of the cash allowance and the closure of a charge account in what may be fairly described as a luxury store. The effects of these last three constituents will not necessarily be co-extensive with the period of five years contemplated by the trial judge as a suitable period for the continued supervision of the children. In other words I have four factors to consider as against the trial judge's one. 38. Whilst being thus careful to approach the matter with more considerations in mind than were necessary for the trial judge to balance, I have nonetheless come to the conclusion that I would not be inclined to differ from his estimate of five years as the appropriate multiplier. By the end of that period the necessity for outside supervision of the children should have ceased. The husband, who is a relatively young man, may by then have remarried when the question of the continued employment of a cook-boy would not be so much a matter of necessity as of choice for the new matrimonial partners. The benefits to the husband of the cessation of the monthly cash allowance and closure of the charge account may enure beyond five years but all-in-all I think the period an appropriate one bearing in mind that the damages are to be compensatory and not punitive. 39. Applying a multiplier of five years to the figure $200 net monthly loss gives us a total figure of $12,000. Scaling that figure down at the same ratio and for the same reasons as the trial judge, produces a figure of $10,000 which I would substitute for the figure of $30,000 arrived at by the trial judge as the pecuniary value of the wife. 40. Turning to the award of $10,000 in respect of injury to the husband's feelings, Mr. Donnelly argued that this award was too high. The husband's petition had been based upon adultery with two named co-respondents and he had claimed a total of $50,000 damages, not against each, but against the two co-respondents. On being offered a sum by way of costs against the first co-respondent, the petitioner had intimated that he "did not press" the claim for damages against that co-respondent. The blow to the petitioner's pride had clearly not been very great in respect of the wife's adultery with the first co-respondent. Why therefore should it be deemed so much greater in respect of that with the appellant? 41. I think the answer to this argument is to be found in Mr. de Basto's reminder that it was not the first co-respondent who was the cause of the break-up of the marriage. It was the appellant with whom the wife had been co-habiting up to the time of the petition and whom she states that she intends to marry and the adultery with the first co-respondent was unknown to the husband until long after the former had left Hong Kong and settled in New Zealand. It was the appellant who proposed to the wife during her marriage to the husband and did his best to entice her away and it was he who guaranteed the rent of the flat which the wife took when she left her husband. 42. The husband, for his part, is a well-known merchant in the community and there is no doubt on the evidence that the injury to his feelings occasioned by the behaviour of his wife and the appellant was deep and real. I can see no reason to interfere with the award under this head. 43. I would allow the appeal and reduce the damages awarded against the appellant from $40,000 to $20,000, the appellant having the costs of the appeal.
27 AUG 1968 Representation: Mr. J.D.M. Donnelly (Stemwart & Co.) for the Appellant (the 2nd Co-Respondent) Mr. Dr Basto Q.C. (Peter Mo & Co.) for the Respondent (the Petitioner) Judgment in Handed down. (1) (1967) P.195 (2) (1960) P.126; 36 T.C.R. 265. (3) (1963) 2 A.E.R. 619 (4) (1911-13) All E.R. Rep 926 (5) (1954) 3 A.E.R. 745 (6) (1966) 1 W.L.R. 476 |