JUDGMENT

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 AiRespondents

FROM

THE COURT OF APPEAL OF BRUNEI DARUSSALAM

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 20th May 1996

Present at the hearing:-

Lord Keith of Kinkel

Lord Jauncey of Tullichettle

Lord Nolan

Lord Nicholls of Birkenhead

Lord Steyn

[Delivered byLord Steyn J: ]

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,