Gurung Gam Bahadur, The Administrator of the Estate of Gurung Anel Alias Gurung Anal, Deceased v. United Construction & Manpower Service Ltd and Another

HCPI 502/2019

[2022] HKCFI 2163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 502 OF 2019

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BETWEEN

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Before: Hon Anthony Chan J in Court

Date of Hearing: 12 and 13 July 2022

Date of Judgment: 14 July 2022

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JUDGMENT

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1.Mr Gurung Anel (“Deceased”) met with a fatal accident at work on 29 March 2017 and was drowned. This action was brought by his father (“Plaintiff”) under the Fatal Accidents Ordinance, Cap 22 (“FAO”) for the benefit of the Deceased’s dependants and under the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”) for loss of accumulation of wealth in favour of the Deceased’s estate (“Estate”).

2.The family members had received HK$2,189,880 as employees’ compensation (“EC”) and HK$38,000 as reimbursement of funeral expenses. The Statement of Damages (“SOD”) filed on 22 January 2021 had been substantially revised downwards in terms of the quantum of claim in the Revised Statement of Damages (“RSOD”) filed on 30 July 2021. The claim now stands at HK$5.1 million, after giving credit for EC.

3.On 22 April 2022, interlocutory judgment on liability was entered against the Defendants by consent with damages to be assessed. On 16 May 2022, the Defendants filed an Amended Answer to the RSOD. This is the assessment of damages.

The Deceased

4.The deceased was born 30 January 1995 in Nepal. He was brought to Hong Kong at the age of 2 to obtain his HKID card, and then returned to Nepal where he grew up and received education up to Form 6. He came to Hong Kong in the summer of 2014 aged 19. At first, the Deceased worked as a waiter. In April 2015, he worked as a general labourer at a construction company earning an average monthly income of HK$20,565.37. The Deceased then obtained a Trade Test Certificate of Scaffolder Intermediate, and he joined the 1^st Defendant in December 2015 as a metal scaffolder and worked on the Zhuhai-Macau Bridge project until he met his death.

5.The Deceased’s average monthly earnings as stated on the Form 2 matched his bank statements and past salary record, namely, HK$27,955 per month at the time of accident.

The claims

6.For the FAO claim, the dependants are :

(1) The Plaintiff, born on 30 June 1964, and aged 52 years and 9 months at the time of accident;

(2) Mother of the Deceased, born 10 May 1974, and aged 42 years and 10 months;

(3) Younger sister of the Deceased, born 28 May 1997, and aged 19 years and 10 months; and

(4) Grandmother of the Deceased, born 17 January 1924, and aged 93 years and 2 months.

7.It is the Plaintiff’s case that the Deceased used to give him about HK$20,000 to HK$22,000 monthly, which was equivalent to about 75% of his income, to support his dependants. The average monthly transfer to the Plaintiff from the Deceased was about HK$19,500.

8.The Plaintiff’s case is that the monthly transfer of HK$19,500 was allocated in the following manner :

(1) HK$4,000 to support the study and living of the Sister in Nepal;

(2) HK$2,000 to support the living of the Grandmother in Nepal;

(3) HK$6,750 was used for the construction of a residential property in Nepal (“Property”);

(4) HK$3,350 to support the Plaintiff in Hong Kong; and

(5) HK$3,350 to support the Mother in Hong Kong.

9.The construction of the Property (a house of 3,750 sq ft with about 5 bedrooms) commenced in February 2015 and was completed on about 16 March 2017, shortly before the accident. The total construction cost incurred was about HK$600,000. The Plaintiff said that the Deceased had agreed with his parents that after building the Property, the amount of HK$6,750 used for its construction would be used for the study of the Sister in the UK on top of the HK$4,000, making a total of $10,750, until her graduation from a MPhil program. It is further claimed that it was also agreed by the family members that after the graduation of the Sister, out of the sum of HK$10,750 the deceased would retain HK$2,000 for his own savings/personal use and the balance of HK$8,750 “would be for the benefits of the parents in equal shares”.

10.The following claims of the Plaintiff were agreed at the beginning of the hearing :

(1) Bereavement under the FAO at HK$150,000;

(2) Pain suffering and loss of amenities under the LARCO at HK$30,000;

(3) Funeral expenses at HK$70,000;

(4) Special damage at HK$5,000.

11.Before I consider the controversial claims of loss of dependency and accumulation of wealth, I set out the principles of law by which this court shall be guided.

Applicable principles

12.In Tsang Mei Ying v Lam Pak Chiu [1999] 2 HKLRD 807, 810I-H, Seagroatt J held that :

“The starting point [for assessment of dependency] is to calculate the value of dependency as at the date of death, usually as a percentage of the income of the deceased. It was then revised in the light of the income which he would have received at the date of trial had he survived. The best means of calculating the dependency was to set out item by item where possible, the value annually (or monthly) of the payments made for the benefit of the family as a whole subject to any deduction to represent the benefit of the deceased. ... Many items of dependency are common to the family whether there are children or not, and, if there are, when they leave home and the picture of dependency in other respects changes. The common items remain part of the dependency picture ... The modern practice was to deduct a percentage from the net income of the deceased to represent what he would have spent on himself ... It is not appropriate to calculate dependency on a simple equal mathematical division amongst all dependents of the sums given by a husband to his wife for the upkeep of the family home, its outgoings, and the general necessities of life. This is a wholly artificial approach and was a practice to be deprecated. It is not conducive to a calculation which was fair to either party.”

13.In Kan Wai Ling v Kan Chi Fai [2018] 4 HKC 324, [129], Bhawaney J held that :

“The award under this head of claim is not a lump sum award to represent the loss of a future continuing stream of income, which has to be discounted, on account of accelerated receipt, by the use of a multiplier. The above assessment has to be made in order to assess the total notional accumulation of wealth from the time of death to the time of notional retirement, including any likely growth of these accumulated savings from investment returns. Once this amount has been assessed, the next stage is to determine whether this accumulated wealth would grow, or be depleted, by the time of natural death. If there is a net balance at the time of natural death, this net balance, which is a future loss sustained by the estate of the deceased, must be discounted for accelerated receipt. However, this discount is a discount for the accelerated receipt of a future lump sum loss rather than for the loss of a future continuing stream of income.”

Evidence

14.The Plaintiff was the only witness at the hearing. His evidence on loss of dependency was heavily challenged. First of all, he did not reveal in the SOD, RSOD or his witness statement that both he and his wife were in fact working at the time of the tragic accident. At that time they were respectively 52 and 42 years old. Like his son, the Plaintiff was a metal scaffolder, and he was working at the same construction site as his son. He was earning about HK$30,000 per month. The wife was working in a hotel earning about HK$16,000 per month, and she was paying the rent for the flat in which she lived with the Plaintiff and the Deceased at HK$6,900 or HK$7,800 per month (there is a variance between the wife’s bank statements and the rental receipts on the amount of rent but the variation is not critical).

15.It is fair to say that the fact that the parents were in full-time employment must be relevant to their claim for dependency on the son, who was earning less than the father and living in the flat paid for by the mother. There was no good explanation from the Plaintiff for not referring to their employments.

16.In cross-examination, the Plaintiff said that the Deceased started to give him money in January 2016 after he started working for the 1^st Defendant in December 2015. The bank statements of the accounts of the Plaintiff and the Deceased showed that on 4 February 2016 there was a transfer of HK$20,000 from the Deceased to his father. As far as the documentary evidence is concerned, that was the first transfer. From the Deceased’s bank statement, it can be seen that there was less than HK$2,000 in the account on 1 February 2016 and the transfer was only made after the receipt of about HK$29,000 as salary on 4 February 2016.

17.It can be seen from the father’s account that on 5 February 2016, a sum of about HK$47,000 was transferred to a remittance company. The Plaintiff confirmed that the sum of HK$20,000 from his son constituted part of the HK$47,000. The Plaintiff initially said that the money was for one of the instalment payments for the construction of the Property. When it was pointed out to him that a pattern of such remittances could be seen from the bank statements, ie, the son’s transfers of HK$20,000 to HK$22,000 were applied to the larger remittances to Nepal to pay for the construction of the Property, the Plaintiff said that the remittances were for the construction, the education of his daughter and for his mother. He said that HK$4,000 was applied for the daughter, HK$2,000 for his mother and the rest for the Property.

18.It appears from the Plaintiff’s bank statements that the last remittance transfer was made on 12 February 2017. The Plaintiff confirmed that by March 2017, the construction was completed and no further cost was paid.

19.When the Plaintiff was asked about the absence of any transfer of HK$6,000 for remittance to his daughter and mother after the completion of the Property, he said that money was not sent as a routine every month. However, he did not identify in his bank statements any withdrawal or remittance attributable to his daughter or mother or explain how the money was sent.

20.The Plaintiff was asked why in the SOD, which was verified by his statement of truth, there was no claim of dependency for his daughter and mother. The only answer he gave was that the claims were mentioned in his witness statement, which was filed on 29 June 2021. At the time when the SOD was filed, the Plaintiff’s daughter had started her second year at Coventry University and the Plaintiff accepted that it was in the foremost of his mind that had his son remained alive he would be supporting his sister in the UK.

21.As regards his case on loss of dependency on the part of himself and his wife, the Plaintiff was asked, given his evidence that the HK$20,000 to HK$22,000 was utilised from the Property, his daughter and mother, where the HK$6,750 per month for him and his wife came from. To that question, the Plaintiff said that the money also came out of the HK$20,000 to HK$22,000 given to him by the Deceased.

22.Some details concerning the daughter’s education also emerged from cross-examination. She went to the UK in 2018 as a foreign student for whom the tuition fees were considerably higher than the locals. The Plaintiff relied upon the ex gratia payments received from the Deceased’s employer to pay for his daughter’s UK education, the total cost of which in 2018 was estimated at £17,000 to £18,000. The Plaintiff acknowledged that if it was a case of him, his wife and son (had he remained alive) paying for the education, they would be hard pushed but he said that this son was very adamant of sending his sister to university.

23.However, the daughter was born in Hong Kong and she was entitled to go to a Hong Kong university at considerably reduced expenses. On the other hand, the Plaintiff said that his daughter had wished to study in the UK, which they discussed, and that from beginning to end they wished to send her to the UK.

24.The Plaintiff said that in his culture the son would keep a little from the money he made and give the rest to the father. When the Plaintiff was asked how much he gave to his mother before the accident, he said that he paid for all the expenses but did not keep track of them. Pressed further, the Plaintiff said that he remitted HK$7,000 to HK$8,000 to his mother for her expenses, but not every month. However, no matching remittance can be found in the Plaintiff’s bank statements.

25.The Plaintiff also said that in his culture, the children would look after the parents. The children would give money to the parents, and the latter would look after the grandchildren.

26.When asked about the Deceased, the Plaintiff said that he knew his son very well. The Deceased had no girlfriend at the time of the accident. If necessary the Plaintiff would arrange a marriage for him. His son did not adopt the lifestyle typical of young people in Hong Kong. He never spent the night out, always had dinner at home and would occasionally go out with his friend(s) but not for long. The Deceased liked to play TV game at home. He did not mention his personal plan with the Plaintiff. Further, the unchallenged evidence is that the Deceased was neither a drinker nor a smoker and he participated in recreational sports. He was very close to the Grandmother.

27.Finally, I should mention that I would not hold against the Plaintiff in respect of what may be seen as unsatisfactory explanations by him on why his daughter was not included as one of the eligible persons entitled to share in the EC. With respect, there was a false premise in the cross-examination because the daughter was not so eligible. Further, I can see a real possibility of confusion on the Plaintiff’s part as to why his daughter was not included in the EC claim by the Labour Department, which arose from his lack of understanding of the statutory provisions and the language barrier with the staff of the Labour Department.

Loss of dependency

28.First and foremost, it is almost a given that in a fatal accident case involving a young victim, there would be little direct evidence on which the court can base its evaluation of a loss of dependency claim. On the other hand, it would be doing injustice to the Estate and the beneficiaries hereunder to require specific proof where little can be expected due to the circumstances of the Deceased. In my view, doing justice requires the court to take a sensible and realistic view of the evidence and inferences can be drawn where they are justified on the facts of the case.

29.I am unable to accept the Plaintiff’s evidence concerning the dependency of the Grandmother and Sister. They were not included in the SOD, which was a document prepared by the Plaintiff’s solicitors and verified by his statement of truth. On the other hand, I accept that on the evidence before the court it is more likely than not that, but for the accident, the Deceased would have supported his parents and sister.

30.The only concrete evidence of financial contribution from the Deceased was the monthly transfers of HK$20,000 to HK$22,000 over a period of 1 year prior to the accident. However, it is more likely than not that such large contributions (compared to the Deceased’s income) were made for the special purpose of building the Property.

31.Nevertheless, it showed that the Deceased was not an ungenerous son. I bear in mind the evidence that the Deceased belonged to a traditional Nepalese family. He was close to his parents. It is therefore quite likely for the Deceased to start giving his parents money after the completion of the Property when a very substantial amount of his income became untied.

32.There is little for the court to work on concerning the quantum of the monthly contribution. On the other hand, if the evidence established that the Deceased would likely have given financial support to his parents, the court must do its best to assess the appropriate sum. Bearing in mind the income of the Deceased, I take the view that HK$5,000 per month would be the appropriate sum for his parents’ loss of dependency (HK$2,500 each).

33.Although the Deceased was close to his grandmother, given the lack of evidence of financial support and the Plaintiff’s evidence that he was paying all the expenses. The HK$5,000 given to the parents by the Deceased would at least put more disposable income in the father’s hand in case he wanted to spend more money on his mother. I would not make a separate award for the Grandmother.

34.In respect of the Sister, I think it is likely that the Deceased would support his only sister’s study in the UK, just as he had made sacrifice for the Property. Relying on the evidence that the Sister’s study was funded by the ex gratia payments, Mr Lim, who appeared for the Defendants, argued that the Sister would not have pursued her study in the UK if not for the funding.

35.There is certainly merit in the argument. On the other hand, the evidence is that the Sister was in a close traditional family. Not only was she the only daughter, she was the only one who had an opportunity to pursue a tertiary education. I see no reason to doubt that the family would be delighted by the prospect and the parents and brother, all of whom were (or would have been) working, would be happy to shoulder the financial burden to make that dream come true for the Sister.

36.UK was (and is) a very popular destination for education. Nepalese people may feel a particular affinity with UK given their historical connection. Most importantly, the Sister’s wish to study in the UK is demonstrated by the fact that she had been there since 2018. The family could have afforded to send her there to study based on its own income, albeit with belts tightened.

37.I am satisfied that the Deceased would have supported his sister’s UK study. As for quantum, doing the best I can, I take the view that a sum of HK$10,000 would be appropriate for this loss of dependency.

Calculation

38.I would not adopt the conventional adjustment for pre-trial and post-trial calculation. Firstly, the evidence is that the Deceased’s monthly earnings had only increased from HK$27,942 on the date of accident to HK$32,336 as of the date of assessment.

39.Secondly, it is quite likely that the Deceased’s lifestyle or requirements would change as he become older. Most importantly, is it likely that he would have developed romantic relationship, followed by marriage and fatherhood. Such changes mean that he might not be able to increase his support for his parents or sister with the increase of his income.

40.Thirdly, the parents were working and there was no necessity to increase the monthly support to them. As for the Sister, she would likely be supported by 3 persons and there was no necessity for the Deceased to adjust his support to her over the few years of her education.

41.Mr Lim argued that the parents might return to Nepal live in the Property when they retire and therefore the loss of dependency should be reduced. I am not convinced on the evidence that it is a possibility of sufficient certainty which should be taken into account. This possibility should be balanced against the fact that the parents had been living in Hong Kong for a very long time. No doubt they have friends here (the Plaintiff said he does) and Hong Kong has a reliable and economical public health care system. Even if they spend time in Nepal, it is likely that they would return to Hong Kong from time to time. Further, I fail to see the basis for the son to deduce the monthly allowance to the parents because they returned to Nepal. The proposition is premised on the assumption that the son would not be generous to the parents.

42.Mr Lim also argued that the money which the Deceased would have given to the parents should be reduced by the expenses attributable to him by reason of them living together under the same roof. Mr Lim suggested on a broad brush basis that such reduction should be in the sum of HK$3,000, thus leaving HK$1,000 each for the parents. I am unable to agree. The expenses of the family prior to the accident were not explored in evidence. Apart from the rent, nothing was asked about the expenses. It is possible that the Deceased had made substantial contribution by purchasing food and other necessities. I see no sufficient evidential basis for the deduction.

43.In respect of the loss of dependency of the parents, the pre-trial loss should be calculated by multiplying HK$5,000 by 63.5 months = HK$317,500.

44.As for the post-trial loss, it should be calculation as follows :

The Plaintiff

HK$2,500 x 12 x 18.11 (the multiplier was agreed) = HK$543,300

Mother

HK$2,500 x 12 x 25.78 = HK$773,400

45.For the Sister, by the time she finishes her 1 year Master programme which she will soon embark upon, she would have spent 60 months studying in the UK. Her loss of dependency is: HK$10,000 x 60 months = HK$600,000. For calculation of interest, the pre-trial period is 48 months and 12 moths for post-trial.

Loss of accumulation of wealth

46.There is not pattern of saving of the Deceased. There was only HK$4,221.89 in his bank account as disclosed in the Letters of Administration. There is certainly force in the Defendants’ challenge on the lack of direct evidence on this claim.

47.However, for a tragic death of a young person who had not embarked upon his working life for long, the lack of evidence of saving pattern is not surprising. Such deficiency does not inhibit the court from doing justice by considering all the relevance circumstances with sound common sense (see Lam Pak Chiu v Tsang Mei Ying (2001) 4 HKCFAR 34, 44F-I).

48.I infer from the evidence that the Deceased was a young man with a positive attitude to do better in life. He obtained the necessary qualification and followed his father into a skilled trade. In his short career, he was making progress and earning more. He made significant sacrifice for the building of a family home. There is no reason to believe that had the Deceased remained alive he would not have continued with the progression. I bear mind also the fact that his father, in a similar job and having raised 2 children, had managed to accumulate over HK$200,000 of saving at the time of the accident. There is no reason to believe that the Deceased would pass away a penniless man in the absence of the accident. On a balance of probabilities, I believe that this claim is proven.

49.The parties are in substantial agreement on the methodology for the assessment under this head, based on Kan Wai Ling, as set out in para 31 of the Defendants’ Closing Submissions. Each of the components for the assessment was discussed at the hearing and the parties agreed that the calculation should be redone by them with the following modifications :

(1) Monthly earnings: HK$30,836;

(2) Monthly earnings with MPF: HK$32,336;

(3) Annual Savings: HK$38,803.20

50.I decline to accept that Defendants’ submission that the Accumulated Savings should be deducted by Annual Dependency. Only the dependency of the parents is relevant because it is common ground that the Deceased would have started to save at 30 years old by which time his sister would have completed her study. Whilst it is logical that the parents’ dependency would reduce the disposal income of the Deceased, one must balance that against the inherent unfairness in the assumption that the Deceased would not have made any advancement in his career. Plainly, he would have become an experienced metal scaffolder by time he reached 30. It is perfectly possible, with a positive attitude in life, for him to become, eg, a foreman earning materially more than he used to. I therefore disagree with the Defendants having balanced the relevant evidence.

51.With that rejection, the Annual Expenses become 90% of the Deceased income.

52.The assumption that the Deceased would have lived for 17 years after retirement was agreed by the parties.

53.I believe that the about findings are sufficient for the parties to perform the mechanical recalculation, and I am grateful to them for having agreed to do so.

Interest

54.There is no demur on the Plaintiff’s submissions on interest entitlement and I agreed :

(1) Interest on damages for pre-trial loss of dependency at half judgment rate(s) from the date of accident to date of judgment;

(2) Interest on damages for bereavement at full judgment rate(s) per annum from the date of death until date of judgment;

(3) Interest on special damage at half judgment rate(s) from 29 March 2017.

Disposition

55.Given the need for recalculation, the parties are to agree the quantification of the damages (with deduction of the EC and reimbursed funeral expenses) in light of the findings in this judgement and to submit a draft Judgment for the approval of the court.

56.As for costs, there is agreement that costs should follow the event. In the event that the judgment sum falls within the District Court jurisdiction (HK$3 million), the Plaintiff accepts that he would only be entitled to costs on District Court scales. The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

57.Last but not least, I am grateful to counsel for their assistance to the court, especially on the assessment of loss of accumulation of wealth which had become quite complex since Kan Wai Ling.

Mr Raymond Lau, instructed by Lee & So, assigned by Director of Legal Aid, for the Plaintiff

Mr Patrick D Lim, instructed by Norton Rose Fulbright Hong Kong, for the 1^st and 2^nd Defendants