SOA Annual Symposium Shanghai. November 5-6, Shanghai, China. Session 3a: One Country, Two Systems and Three Disciplines.

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1 SOA Annual Symposium Shanghai November 5-6, 2012 Shanghai, China Session 3a: One Country, Two Systems and Three Disciplines Wai-Sum Chan

2 One Country, Two Systems and Three Disciplines: Interdisciplinary Research of Law, Economics and Actuarial Mathematics in Assessment of Personal Injury Damages in the People s Republic of China Wai-Sum Chan, FSA, CERA, PhD Professor of Finance The Chinese University of Hong Kong 1 of 34

3 Authors of this Project Professor Wai Sum Chan Professor of Finance, The Chinese University of Hong Kong Econometrician Professor Wai Hon Chan Associate Dean of Law, The University of Hong Kong Solicitor (Hong Kong, England and Wales) Professor Siu Hung Li Fairfax Chair in Risk Management, University of Waterloo, Canada Actuary 2 of 34

4 Agenda 1. Introduction 2. Personal Injury Laws in Asia 3. Personal Injury Claims in Hong Kong 4. Personal Injury Claims in China 5. Discussion 6. Concluding Remarks 3 of 34

5 4 of Introduction

6 What is Personal Injury? Personal injury is the name given to the branch of tort law that covers any wrong or damage done to another (bodily injury). A personal injury can happen at work, in a traffic accident, because of a faulty product or a faulty repair, because of a mistake during medical treatment, or because you slipped and fell on a wet floor or pavement. The personal injury can be physical or psychological but, to be considered actionable, it must occur due to the negligence or unreasonably unsafe actions of your employer, a manufacturer, your doctor, your landlord, or some other person or organization who owes you a duty of ordinary care. 5 of 34

7 Personal Injury and Liability Insurance Motor Insurance General Liability Insurance Medical Malpractice Liability Insurance Product Liability Insurance Homeowner Liability Insurance 6 of 34

8 Personal Injury and Other Compensation Schemes Hong Kong 7 of 34

9 Personal Injury and Other Compensation Schemes Singapore Work Injury Compensation Act (2008) 8 of 34

10 Personal Injury and Other Compensation Schemes The Accident Compensation Corporation (ACC) of New Zealand 9 of 34

11 2. Personal Injury Laws in Asia 10 of 34

12 Personal Injury Laws in Asia Common Law Countries Hong Kong: SAR of China 1997 (One Country, Two Systems) Singapore: Independence 1965 Malaysia: Independence 1957; Motor Tariff, Motor Act India: Independence 1947; Motor Tariff, Motor Vehicles Act 1988 Civil Law Countries China Japan 11 of 34

13 3. Personal Injury Claims in Hong Kong 12 of 34

14 Personal Injury Claims in Hong Kong The basic principle underlying the assessment of the quantum of damages is restitutio in integrum, which implies that the amount of compensation awarded should put the successful plaintiff in the position he or she would have been had the tortious action not been committed. In Hong Kong personal injury litigations, successful claimants usually receive their compensations as a lump sum. The main advantage of a lump sum payment is that the proceedings can be concluded with a clean break between the parties. 13 of 34

15 The Multiplicand/Multiplier Approach When assessing future pecuniary loss in personal injury litigations in common law countries, courts often use the multiplicand/multiplier approach. Lump Sum = Multiplicand Multiplier The multiplicand (the future annual loss of income and the annual consequential expense, such as the cost of care) is established by evidence put before the judge, who then has to decide an appropriate multiplier. The multiplier is used to discount the future pecuniary values into a present lump sum, considering the time value of money, the plaintiff s mortality and contingencies other than mortality. 14 of 34

16 Choosing Multiplier: The Conventional Approach The conventional approach to selecting multipliers is based on the applied wisdom of the courts over many years. In choosing a particular multiplier, the court will make comparisons with multipliers used in similar cases among common law countries. However, when the conventional approach is used, the multipliers would not be linked to the mortality experience or the local economic environment. Furthermore, it is practically impossible to find any truly comparable cases that have similar factors in respect of age and sex of the victims, mortality experience of the general population, inflation, taxation, and investment return rates. The fairness of conventional multipliers, which are based on analogy is, therefore, questionable. 15 of 34

17 Choosing Multiplier: The Actuarial Approach Under this approach, multipliers are computed on the basis of the actuarial equivalence principle, by which we mean the compensating amount is the expected present value of all future losses and expenses. The actuarial approach has been using in many common law countries, such as Australia, Canada, U.S.A. and the United Kingdom. For example, in July 1998 the House of Lords (England) approved actuarial evidence as the primary method of assessing future pecuniary loss, rather than viewing it as a mere check. The Ogden Tables (tables of actuarially computed multipliers, prepared by the British Government Actuary s Department, now in their seventh edition) has been assisting in the calculation of damages for personal injury in England. 16 of 34

18 Choosing Multiplier: The Hong Kong Approach Since the publication of the Hong Kong Multiplier Tables (2002, 2005 and 2013), Hong Kong courts have been moving from the Conventional Approach towards to the Actuarial Approach. 17 of 34

19 18 of 34

20 A Summary of the Hong Kong Multiplier Tables Table number Multipliers Formula 1, 2 Multipliers for pecuniary loss for life ā x 3, 4 Multipliers for loss of earnings to pension age 50 ā x:50 x 5, 6 Multipliers for loss of earnings to pension age 55 ā x:55 x 7, 8 Multipliers for loss of earnings to pension age 60 ā x:60 x 9, 10 Multipliers for loss of earnings to pension age 65 ā x:65 x 11, 12 Multipliers for loss of earnings to pension age 70 ā x:70 x 13, 14 Multipliers for loss of earnings to pension age 75 ā x:75 x 15, 16 Multipliers for loss of pension commencing age 50 (50 x) ā x 17, 18 Multipliers for loss of pension commencing age 55 (55 x) ā x 19, 20 Multipliers for loss of pension commencing age 60 (60 x) ā x 21, 22 Multipliers for loss of pension commencing age 65 (65 x) ā x 23, 24 Multipliers for loss of pension commencing age 70 (70 x) ā x 25, 26 Multipliers for loss of pension commencing age 75 (75 x) ā x 27 Discounting factors for term certain v n 28 Multipliers for pecuniary loss for term certain ā n 19 of 34

21 4. Personal Injury Claims in China 20 of 34

22 Personal Injury Claims in China Still use the multiplicand/multiplier approach. Lump Sum = Multiplicand Multiplier But both the multiplicand and multiplier are prescribed: 最 高 人 民 法 院 关 于 审 理 触 电 人 身 损 害 赔 偿 案 件 若 干 问 题 的 解 释 January 2001 最 高 人 民 法 院 关 于 审 理 人 身 损 害 赔 偿 案 件 适 用 法 律 若 干 问 题 的 解 释 May 2004 最 高 人 民 法 院 关 于 审 理 铁 路 运 输 人 身 损 害 赔 偿 纠 纷 案 件 适 用 法 律 若 干 问 题 的 解 释 January of 34

23 Multiplicand China s Approach The multiplicand is fixed according to the province and area of residence (rural or city) of the plaintiff. For residents in city and town areas, the multiplicand is last year s the average disposal income per person in that province published by the National Bureau of Statistics of China (NBSC). For residents in farming and rural village areas, the multiplicand is last year s the average gross income per person in that province published by the National Bureau of Statistics of China (NBSC). This method does not require any individual judgment: just applies the fixed amount as pre-determined according to national statistics. 22 of 34

24 Multiplicand China s Approach Average Disposal Income Per Person by Province (City and Town Areas) 23 of 34

25 Multiplicand China s Approach Average Gross Income Per Person by Province (Farming and Rural Village Areas) 24 of 34

26 Multiplicand China s Approach 35,000 上 海 30,000 北 京 福 建 浙 江 City 25,000 广 东 江 苏 天 津 20,000 15,000 贵 州 山 东 重 庆 National 广 西 湖 辽 宁 河 南 江 山 西 北 西 河 北 云 南 內 蒙 吉 林 西 藏 安 徽 海 南 青 海 宁 夏 陕 西 四 川 新 疆 黑 龙 江 甘 肃 10,000 5, Rural 25 of 34

27 Multiplicand China s Approach Selected Multiplicands in 2011 (in USD) Province City Rural Shanghai $ 5,801 $ 2,570 Beijing $ 5,268 $ 2,359 Zhejiang $ 4,958 $ 2,093 Heilongjiang $ 2,513 $ 1,215 Qinghai $ 2,498 $ 738 Gansu $ 2,400 $ 626 National Average $ 3,492 $ 1, of 34

28 Multiplier China s Approach The multiplier is fixed according to the age of the plaintiff. See sections 25 and 28 of 最 高 人 民 法 院 关 于 审 理 人 身 损 害 赔 偿 案 件 适 用 法 律 若 干 问 题 的 解 释 May 2004 Age of Plaintiff Multiplier 60 or below Age 61 > multiplier = 19 Age 62 > multiplier = Age 74 > multiplier = 6 75 or above 5 27 of 34

29 28 of Discussion

30 Comparsion Multiplicand Hong Kong Evidence-oriented: different judges may come up with different interpretations of the figures and evidence Depending chiefly on the plaintiff s education and personal background Location of residence is not a crucial factor China Fixed amount: Based on national statistics An investment banker and a construction worker will give rise to the same figure Location dependent (province, city etc) 29 of 34

31 Comparsion Multiplier Hong Kong Proposed Actuarial Approach Age and gender related Relying on population and longevity projection Need a discount rate China Fixed Formula Approach Not related to age and gender of the plaintiff Not statistical / actuarial based Interest/discount rates are not relevant 30 of 34

32 6. Concluding Remarks At the other end of the spectrum to lump sum compensation is the annuity method which is adopted in theory (though not rigidly in practice) by a number of civil law countries, such as Japan and Germany. However, in Japan, under the Automobile Liability Security Law Enforcement Order (Cabinet Order No. 286, 1955) -- 自 動 車 損 害 賠 償 保 障 法 施 行 令 ( 昭 和 30 年 政 令 第 286 号 )--, periodic payments may be capitalized using prescribed annuity factors. These tables of factors are publicly available, for example, the webpage of Non-life Insurance Rating Organization of Japan (www.nliro.or.jp). Analogous to the English Ogden Tables, the Japanese tables of annuity factors are constructed using sound actuarial and economic principles. 31 of 34

33 6. Concluding Remarks 32 of 34

34 6. Concluding Remarks It is important for the courts to grant adequate compensation to the viticms. As Professor T. Ison stated How any society responds to the need of those who are disabled from earning, and the dependants of those who are prematurely killed is surely one of the moral indicators of its civilization. With more actuarial experts in China nowadays, it might be a good starting time to consider building sound actuarial and economic principles (say, life tables, annuities, discount rates, mortality improvement) into the Chinese perosnal injury compensation systems. 33 of 34

35 Thank You! We wish to acknowledge the support of a research grant from the Research Grant Council of the HKSAR ( General Research Fund Project No: HKU) 34 of 34

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