Leung Tai Ah v Chan Tak Wan And Another

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.3 OF 1968.

(ON APPEAL FROM O.J. ACTION NO.180 OF 1967)

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JUDGMENT OF THE PRESIDENT

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1. This appeal arises out of an action claiming damages for personal injuries caused by the negligent driving of a bus by the first defendant as servant or agent of the second defendant in Canton Road, Kowloon, at about 7.00 a.m. on the 17th March, 1966.

2. The facts shortly are that the plaintiff was walking on the pavement of Canton Road at about the time stated when a bus owned by the second defendant and driven by the first defendant mounted the pavement and struck the plaintiff and knocked him down causing him injuries. It was found by the trial judge that the first defendant drove negligently and that there was no contributory negligence on the part of the plaintiff. The plaintiff's injuries were found by the trial judge to be as follows:-

3. The plaintiff has always worked as a coolie or fisherman, earning his living by the strength of his muscle, and he has been deprived of his ability to continue to do so, and he is illiterate.

4. The learned trial judge found that the plaintiff's earnings were $480 per month, that his future earning capacity was $100 per month, and that his probable average loss of present and future earnings was $380 per month, and he awarded the plaintiff special damages amounting to $7,182, general damages amounting to $68,400 for loss of future expectation of earnings, and general damages for pain and suffering, disfigurement, and loss of amenities, amounting to $20,000, being $95,582 damages in all.

5. The defendants have appealed against one part of the judgment only, namely the assessment of general damages amounting to $68,400 for loss of future expectation of earnings, and the defendants allege that that amount grossly exceeds the amount to be awarded based on the trial judge's own finding of a loss of earning capacity of $380 per month. It is only the amount of $68,400 which is challenged.

6. In giving his reasons for arriving at the figure of $68,400, the learned trial judge having come to the conclusion that $380 per month was the probable average loss of future earnings, then considered the question of the multiplier to be applied to that figure, and was of the opinion that the plaintiff, who was a healthy man of thirty-three years of age at the time of the accident, could no doubt have looked forward to many more years of active employment, and, following the case of Richards v. Western Plant Equipment Ltd.⁽¹⁾, he adopted the multiplier of 15 as being the appropriate figure to work upon in the present case. Having decided on the figure of 15 as a multiplier the learned trial judge finally, on this matter, said:-

"On the basis of a loss of earnings of $380 per month it results in an award of $68,400, a sum which is intended to take into account the vicissitudes of life and the fact that it is a lump sum payable now rather than over the period of fifteen years. But for these considerations I would have adopted a higher multiplier."

7. On the hearing of the appeal it was the case for the defendants that the learned trial judge did not assess the $68,400 correctly; but the defendants do not object to the figure of $380 per month assessed as loss of future earnings.

8. Mr. de Basto, who appeared for the defendants at the hearing of the appeal, contended that, although the trial judge had in mind the right principle, he failed to apply it correctly, and that if the sum awarded were invested it would bring in more than the loss; the trial judge had applied the highest multiplier which is used, namely "15", whereas "13" was the more usual, and then, although he had considered discounting the final figure after multiplying by 15, he had not in fact done so. Counsel submitted that a multiplier of 15 in the present case was on the high side, but that, if it were used, it should be discounted; and that it was the practice of the court to take a figure as a multiplier, taking into consideration the vicissitudes of life, and then to discount the resulting figure so that at the end of the relevant period, namely the working life, the capital would be exhausted, but that the trial judge having taken the multiplier of 15 had not discounted it, with the result that, if the sum of $68,400 awarded were invested in good securities, not only would the plaintiff obtain more than the loss of $380 per month, but that at the end of his working life he would still have the capital intact, which was wrong. Mr. de Basto submitted that a figure of from $46,000 to $50,000 would be an accurate figure for loss of future earnings, and that $50,000 invested at $5% would bring in $208 per month. but that the plaintiff would still have the capital, and that yields in Hong Kong on good securities were from 8% to 13%, whereas if the sum of $68,400 were invested at 7½% it would bring in $427.50 per month, whereas the loss per month was $380, and at the end of his working life the plaintiff would still have all the capital intact, and that this was not fair or reasonable; the criterion was that the figure assessed should be fair and reasonable, He argued that $50,000 invested at 9% would produce $375 per month, but that at the end of his working life the plaintiff would still have the capital, whereas the capital should be exhausted; that if the multiplier of "13" had been taken and the resulting figure had been discounted to $48,024, and that amount invested at 7½%, it would produce $300 per month.

9. Regarding the case of Richards v. Western Plant Equipment Ltd.⁽¹⁾, which the trial judge had followed, Mr. de Basto at first pointed out that in that case the plaintiff not only had more severe injuries than in the present case, but that he also had very good prospects of promotion, of becoming a foreman, whereas in the present case that was not so; however Mr. de Basto went on to point out that, although in that case the trial judge took the maximum multiplier of "15" and made no discount, the case went to appeal on the quantum of damages, which appeal was settled before the hearing by the parties themselves agreeing to a reduction of the general damages from £9,000 to £7,250, a reduction of about 20%; (see page 34 (note) and page 264 of Volume 1 of the 2nd edition of Kemp and Kemp on the Quantum of Damages).

10. Mr. Zimmern...