TANG SUK YEE AND OTHERS v. WONG YUK CHAU AND ANOTHER

1981 No. 8222

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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DECISION

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1. This is an appeal from an order made by Master Hansen on the 5th January of this year granting the plaintiff leave to amend her Statement of Claim.

2. The action has a rather complicated history. On the 30th August 1980 an accident occurred as a result of which two people died. Proceedings claiming damages under the Law Reform Ordinance were commenced on the 20th November 1981 on the footing that the two deceased died as a result of the direct or vicarious negligence of the defendants in driving a public-service motor bus.

3. On the 27th August 1982 interlocutory judgment was signed for damages to be assessed and on the 8th November Master Barrington-Jones heard argument and evidence on such assessment. In the course of the assessment objection was made to certain evidence as going beyond the parameters of the Statement of Claim. It was not conceded that amendment was required and no amendment was formulated. With hindsight it may be thought unfortunate that the Master did not require the solicitor then appearing for the plaintiff to submit an amendment in writing while granting the defendants any necessary adjournment at the plaintiff's cost. That was certainly the view of the Court of Appeal. 1983 H.K.L.R. 154 at page 159.

4. The assessment made was the subject of a successful appeal on two grounds:

5. When on the 24th March 1983 the Court of Appeal made its decision and ordered a re-assessment the question of costs arose and the not unfamiliar problem of possible injustice to defendants faced by legally-aided plaintiffs arose. Section 14(3)(c) of the Legal Aid Ordinance Cap. 91 provides that "where any legal aid certificate is filed the aided person (here the plaintiff) shall not for so long as it remains in force, except where express provision is made in the Ordinance, be liable for costs to any other party in any proceedings to which this certificate relates". The appeal to the Court of Appeal was such a proceeding but section 19(2)(a) provides for an award of costs to be made on appeal in favour of an unaided party only if that unaided party has appeared as a respondent. Here, of course, the unaided party appeared as an appellant. So the Court of Appeal had no option but to refuse any order for costs. No order for costs against the respondent could have been made in relation to that appeal by any tribunal. The defendants can, I think, fairly say that to this extent they have suffered a loss which they would not have suffered had the plaintiff not been legally-aided.

6. Following the decision of the Court of Appeal the plaintiff was pretty tardy about applying for leave to amend. The summons was only issued on the 21st November of last year and made pursuant to R.S.C. O.20 r.5 which gives the Court an admitted discretion at any stage of proceedings to allow the plaintiff to amend the writ or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such manner if any as it may direct.

7. Mr. Sakhrani, who appears for the defendants, here the appellants, has drawn my attention to a number of quite old but still authoritive decisions illustrating the proper approach to such an application. Those I consider on this appeal. They have a common thread namely that leave should be granted in order to define the real issues between the parties at any stage providing that the opposing party can be put in as good a position as he would have enjoyed had the amendment been made at the outset. It is not suggested here that the defendants are unable to trace a material witness whose evidence has or will become material by reason of the amendment or that they are otherwise prejudiced in like manner. What is contended is that they have already suffered the loss which I have described by being unable to obtain an order for costs in the Court of Appeal. That is a loss which the defendants would have had to bear and will have to bear whether or not amendment of the Statement of Claim is allowed. It is not, in my view, the sort of prejudice which this Court should take into account in considering the propriety or otherwise of Master Hansen's order. Any injustice arises not from the default of the plaintiff but from the stringent words of the ordinance which cannot properly be nullified by putting the plaintiff on terms in the present context. In the circumstances I happily follow the guidance, for example, of Lord Justice Bowen in Cropper v. Smith⁽¹⁾ at page 710. I think the plaintiff's error is one that the Court ought to correct and that it can be done without injustice to the defendants. In the circumstances the appeal fails and the order of Master Hansen stands.

(1)    (1884) 26 Ch. 700

Representation:

A. Sakhrani Q.C. & A. Pire (J.S.M.) for appellants/defendants

Michael Ozorio (D.L.A.) for respondent/plaintiff

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BECISION

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                Mr Tang Man and his wife Madam Ko Sin were both killed in a traffic accident on the 30th August, 1980 at the Tsuen Wan Ferry Bus Terminus.

                Interlocutory judgment was entered against the 1st and 2nd defendants on the 27th August, 1982, with damages to be assessed.

                At the time of their deaths both Mr Tang Man and his wife Madam Ko Sin enjoyed good health and were aged 58 and 51 respectively. Mr Tang Man was a Civil Service pensioner, and was at the time of his death employed as a lift attendant earning $1,050 per month; and his wife was an assembly worker earning $624 per month, with double pay at the end of the year. They lived in a rented flat in Kwai Chung with their only (unmarried) daughter Daisy Tang Suk Yee (the plaintiff in this Action) who contributed $800 from her salary as a Civil Servant (at that time $1,300 p.m.) towards household expenses. She has now married and lives elsewhere with her husband.

                It was in evidence that Mr Tang Man was appointed a lift attendant with Hong Fok Property Management Co ltd., on the 21st July, 1980 at a starting salary of $1,050 per month but had not completed his probation period of t three months with the Company when he, was killed on the 30th August, 1980. The Property Manager of the Company in evidence said, in effect, that the deceased had made a good impression during his short service with the Company (about six weeks) and felt that he would have been considered for the promotion post of building attendant as and when a vacancy arose; the salary for the particular post was $1,700 and is now $l,800. Although the deceased was 58 when he joined the Company, the Manager advised that would have been allowed to stay on until he was 60 depending on his performance, and might even be continued in employment until 65.

                Both Mr Hamblin and Mr Lim made detailed submission as to how the lost years claim should be formulated under LARCO; and I was referred to the case of Personal Representatives of the Estate of Wong Sai Chuen v. Tam Mei Chun and others - Civil Appeal No, 133 of 1981 and to Yeung Yuk Sim alias Yeung Yee Nui the administratrix and Yeung Fu Wah etc., - 1980 No. 5150 a very helpful judgment delivered by Mayo, J., on the 28th May, 1982.

                I have taken particular note of what the learned judge said (at p. 11) of that judgment viz: -

                Indeed there is now no doubt that the correct approach to adopt is as is clearly set out by the Chief Justice at Page 10 of his judgment in Wong Sai Chuen (supra).

                I must therefore adopt that formula to the facts I have found in the present case, and assess the net 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 R in this case.

                There was no evidence as to what tax, if any, was paid by the two deceased. If there was any, it would, I think, have relatively insignificant and I have therefore excluded any tax considerations from my calculations.

EARNINGS DURING THE LOST YEARS (PRE-TRIAL PERIOD)

30th August, 1980 to date.

26¹/₄ months. Tang Man's employment as a lift attendant would attract a salary of $l,600 today and if he had been promoted to be a building attendant it would be $l,800. I am satisfied on the evidence that there was a distinct possibility that he would have been so promoted although I accept that this is somewhat speculative; so that approaching it from his known salary of $1,050 I will adopt a median figure of $l,425. Then there is Tang Man's pension payments of $405 per month. Objection was taken to the inclusion of this factory 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 $l,834 To this should also be added Madam

            Ko-sin's earnings of x624 as well :as Daisy's (the daughter's) contribution of $800. This results in a total figure of $3,258. This figure should be multiplied by the pre-trial period of 26¹/₄ months which produces a figure of x85,522.

FUTURE INCOME OF DECEASED COUPLE

1. From that total [$351,199] must be deducted the pre-trial and future out goings which I assess at $30,624 and $104,625 respectively which when added together produce $135,249, and this figure should then be deducted from the total income in the lost years viz 16351,199 which results in a final figure of $215,950.

2. It is now established law that a claim for loss of expectation of life can be maintained under LARCO. I therefore award the conventional sum of $15,000 in respect of both deceased under this head, that is $30,000. I also award funeral expenses of $9,a60 as claimed.

3. Both deceased died intestate and their only dependant is their daughter Daisy who will, of course, inherit the deceased" estates in accordance with the provisions contained in the Intestate Estates Ordinanoe Cap.73. There is therefore no award under F .O in this case. The total amount of the award is therefore $255,810.

4. There will be interest on the lost years in the sum of $215,950 and on the loss of expectation of life in the sum of $30,000 at 14% from the date of service of the writ until judgment; and funeral expenses in payment the sum of '9,860 at 7% from the date of judgment until payment

5. The plaintiff is entitled to costs, such costs to be taxed in accordance with the Legal Aid regulations.

6. Dated this 26th day of November, 1982.

Representation:

Mr M.L. Hamblin (D.L.A.) for the Plaintiff

Mr K.Y. Lim (instructed by Johnson, Stokes & Masters) for the Defendants.