Maurice Andre Gensburger v Evelyn Apryl Gensburger And Others

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 18 OF 1968

(Appeal from Divorce No. 113 of 1967)

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JUDGMENT

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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: