The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 17 of 1995

 

Fong Moi Yin (suing as the Administrator of the

Estate of Tan Ah Ngun) Appellant

v.

(1) Rapian Bin Suhaili @ Mohd Sofian Suhaili and

(2) Sia Leong Ai Respondents

 

FROM

 

THE COURT OF APPEAL OF BRUNEI DARUSSALAM

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 20th May 1996

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Present at the hearing:-

Lord Keith of Kinkel

Lord Jauncey of Tullichettle

Lord Nolan

Lord Nicholls of Birkenhead

Lord Steyn

  ·[Delivered by Lord Steyn]

 

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1. This is an appeal from a judgment dated 7th December 1994 of the Court of Appeal of Brunei Darussalam which allowed an appeal on quantum of damages from a judgment of Sir Denys Roberts C.J. dated 25th April 1994.

 

2. For the purposes of the appeal to the Board the nature of the claim can be sketched quite briefly.  On 4th April 1990 Tan Ah Ngun was killed in a motor car accident.  The respondents on the present appeal are liable in damages for having negligently caused the deceased's death.  The deceased's widow sued the respondents.  She brought her claim for damages under the Fatal Accidents Act 1846-1908, and the Law Reform (Miscellaneous Provisions) Act 1934, which at the relevant time permitted a "lost years claim".  In England such a way of assessing a dependants' claim was abolished in 1982.

 

  The undisputed facts were as follows.  At the time of the accident the deceased was aged 44.  His wife was aged 39. They had two children: a daughter aged 11 and a son aged 9.  The daughter died some months after the accident.  The deceased, his wife, their children and the deceased's parents lived in the home of the deceased's sister and brother-in-law.  Altogether 12 persons lived in the house.  The deceased did not pay rent but instead he paid household expenses.  He had been a car salesman for 25 years.  He was paid a commission in respect of new and second hand cars sold by him.  He also earned commissions from finance and insurance companies.

 

3. There was a substantial difficulty about calculating the claims.  There was no record whatever of the deceased's actual earnings.  The explanation is that no income tax is payable in Brunei.  Moreover, there was no documentary record of the deceased's expenditures.

 

4. The trial judge was asked to assess the income of the deceased on the basis of the cumulative effect of three sources of evidence, viz.

 

(1)oral evidence regarding the deceased's expenditure on his family;

 

(2)evidence that a reasonably successful salesman could expect to earn $150,000 per year;

 

(3)evidence regarding savings in bank accounts.

 

5. In the result the trial judge assessed damages on the basis that the deceased's income was $12,000 per month.  For present purposes that was the critical feature of his judgment.  That figure of $12,000 per month was made up as follows:-

 

(a)the amount which according to the judge's findings the deceased spent on household expenses i.e. $6,350 per month;

 

(b)half of the deceased's deposits into his current account made over 15 months prior to his death: $4,200 per month;

 

(c)half the deceased's savings over a period of 15 months prior to his death: $1,600 per month.

 

6. Doing his calculations on the basis of a gross multiplicand of $12,000 per month, reduced by a "conventional 25%", the judge awarded to the widow a sum of the order of $1.5 million.

 

 

7. On appeal to the Court of Appeal the main issue was the deceased's income and the multiplicand.  The Court of Appeal was alive to the evidential difficulties which confronted the trial judge.  The Court of Appeal accepted that it was only possible to work backwards from proved outgoings.  The Court of Appeal proceeded on the basis that the figure of $6,350 in respect of monthly household expenses was realistic.  But the Court of Appeal did not accept the figures of $4,200 and $1,600.  The trial judge had been wrongly asked to work on a savings figure derived from bank statements which did not take into account withdrawals.  For these figures the Court of Appeal substituted sums of $1,000 and $650.  That amounted to a total of $8,000, compared to the trial judge's total of $12,000. Like the trial judge, the Court of Appeal reduced its figure by 25% in respect of the deceased's living expenses. In the result the Court of Appeal reduced the widow's damages to $864,000.

 

8. Turning now to the grounds of appeal counsel for the appellant in a lucid and helpful argument did not invite their Lordships to enter upon the minutiae of the evidence.  Instead he invited their Lordships to conclude that, on a broad brush approach to the cumulative effect of the available evidence of the deceased's income, this was a proper case for the Board's intervention.  He squarely faced the fact that this particular assessment essentially depended on the reliability of different categories of evidence.  Unless there has been a misdirection of law, or the amount is inordinately low or high, the Board does not generally interfere: see Nance v. British Columbia Electric Railway Co. Ltd. [1951] AC 601, at 613 per Viscount Simon L.C.  Counsel invited their Lordships to say that the Court of Appeal misdirected itself in law in two material respects and that those misdirections flawed the approach of the Court of Appeal to the evidence.  First, he submitted that in saying that a moderate award (should) always be made, Mr. Commissioner Huggins, giving the judgment of the Court of Appeal, was guilty of a misdirection.  Counsel said there was no such principle.  In their Lordships' view the Court of Appeal was merely enunciating the truism that an award must be fair to both sides.  There was no misdirection on this point.  Secondly, counsel for the widow reminded their Lordships of remarks of Lord Denning M.R. in Chapman v. Copeland (1966) C.A. 121 (unreported, see Bingham, The Modern Cases on Negligence, 3rd Edn. (1978) page 31).  Lord Denning said:-

"When a man is dead and cannot give evidence, I am ready to make every reasonable assumption in his favour."

 

9. Counsel argued that the Court of Appeal misdirected itself in failing to approach the case in this way.  Lord Denning's observation,  although no doubt apposite to the case before him,

contains no proposition of law.  It is no more than a relevant factor in assessing evidence, and a rather conservative one in view of the fact that it refers to making every reasonable assumption.  Again, there is no misdirection in the judgment of the Court of Appeal.  It follows that in order to succeed counsel must persuade their Lordships that the award of $864,000 (about ,450,000) was inordinately low.

 

10. Counsel for the widow advanced as the principal point of his case the argument that the Court of Appeal underestimated the deceased's income.  First, he submitted that the figure of $6,350 in respect of household expenses failed to do justice to the evidence of the deceased's sister. The judge rejected the sister's evidence as exaggerated.  The Court of Appeal sustained this finding.  It is impossible for the Board to reverse this finding on reliability. In any event the attack of counsel on the figure of $6,350 cannot be sustained because this is a concurrent finding of fact of the trial judge and the Court of Appeal.  The argument of counsel under this heading must therefore be rejected.  Secondly, counsel argued that the trial judge and the Court of Appeal ought to have accepted the evidence about the comparator's salary.  If reliable such evidence is logically probative of income. Unfortunately, after a lengthy trial, the trial judge found this evidence to be unreliable.  The Court of Appeal upheld this finding.  It is impossible for the Board to base any calculations on this evidence.  Thirdly, counsel argued that evidence of moneys in the deceased's bank account and in other family members' accounts justified a higher estimation of the deceased's income.  The trial judge rejected this evidence as inherently unreliable.  The Court of Appeal upheld his finding.  This argument is also one that cannot realistically be entertained on this appeal.  It follows that the major arguments advanced by counsel for the widow must be rejected.

 

11. That leaves one issue which did trouble their Lordships somewhat.  The trial judge, and the Court of Appeal, reduced the gross multiplicand by a "conventional" figure of 25%: see Harris v. Empress Motors Ltd. [1984] 1 W.L.R. 212.  It is by no means clear that this percentage was apposite on the facts of the present case.  On the other hand, even if the percentage is on the high side, it must be borne in mind that it was adopted by the trial judge after a trial lasting more than two weeks.  It involves an assessment of fact and degree.  And the Court of Appeal also adopted it.  There is no case for a drastic reduction of the 25% figure.  And it must be viewed against the context of the award as a whole.  An error in estimation on one aspect will generally only justify an increase of the award if the award as a whole is too low.  The reason for this approach is that there is no injustice if the award as  a whole is in the right bracket.  The Board was told that

the award, as reduced by the Court of Appeal, was by far the highest award ever made in such a case in Brunei.  The award, as reduced by the Court of Appeal, was certainly not too low.

 

12. Their Lordships will advise His Majesty the Sultan and Yang Di-Pertuan that the appeal ought to be dismissed with costs.

 

 

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