Lee Wai Lien v. Dragages Et Travaux Publics and Penta-ocean Construction Co. Ltd.

HCPI000596/1999

HCPI 596/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 596 OF 1999

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Coram: Master Cannon in Court

Date of Hearing: 20 - 21 June 2000

Date of Delivery: 20 September 2000

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ASSESSMENT OF DAMAGES

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1. Yang Sung Po was one of six men who died on 6th June 1996 when the Rambler Channel Ridge on which they were working collapsed. This action is brought on behalf of the estate under LARCO and on behalf of the dependants under the Fatal Accidents Ordinance. Interlocutory judgment was entered on 21st December 1999, and the Notice of Appointment of Assessment Damages issued on 6th January 2000, with the date fixed for this assessment for 20th June 2000.

2. Mr. Cheng was aged 50 at the time of the accident. The dependency claim originally related to his wife, his mother and his mother in law. At the assessment the plaintiff applied to amend the statement of claim, to include the son, daughter in law, and two grandchildren as dependants, with the plea that the son and his family did not contribute to the household expenses, and further applied to allow the witness statement of Yang Hsin Chung into evidence. Having heard argument, I allowed the amendment and the further evidence, although it was late in the extreme.

3. At the assessment, two witness statements of Madam Lee Wai Lien, the plaintiff, and the one of Yang Hsin Chung, the son of the deceased, were admitted into evidence.

4. Yang Hsin Chung gave evidence and he confirmed the evidence of his statements as true. As to his employment as a security guard with Guardforce, he has the some documents relating to his employment, but they are at home. In January 1998 he changed to work as a steelbender, earning $900 per day, with an average monthly earnings of $22,000. When his wages increased to $1,000 per day in about July to August 1998, his average monthly income was $24,000. At present he works 24 days a month and averages $24,000.

5. At the time of the accident, the flat was 300 to 400 square feet and housed the six family members.

6. As to his monthly expenses, the $5,000 listed for meals out of home were to cover lunches for him and his wife, with his share being about $3,000. The figure of $1,000 covers the joint travelling expenses of him and his wife, his share being about $600 to $700. The $1,000 for clothing was joint, his share being about $300. His wife earned $6,800 at the time of the accident, but she did not give anything to his mother, they pooled their joint incomes for the upkeep of the children, which left a balance of $5,800. The $4,000 paid to his mother was a wage for her undertaking the care of the children.

7. As to the expenses for Kar Yee, born on 23 August 1991, he does not agree that the expenditure is excessive. As for Kar Ki, born on 24 April 1993, again he does not agree that the expenditure is excessive. The figure for books and stationary also represents snacks at school and the extra sums required for art work at school. The item of toys and books represent story books bought for the children at home, and the elder daughter likes to paint as well as reading story books. The miscellaneous items under clothing and miscellaneous represents sock, shoes and so on.

8. He did not pay his mother anything over and above the $4,000 per month, he did not pay anything for the family upkeep, but he did occasionally give his mother $100 or $200 for tea month.

9. He has no difficulty in meeting the current expenses of $19,662. His daughters are now attending primary school so there are no school fees and it is not necessary to pay his mother to care for the children now, and there is no amount included for meals taken outside the home. If those items were included then their joint earnings of $23,800 would not be sufficient.

10. There are additional expenses for food, travelling expenses and pocket money for the two children, but he does not pay $4,000 per month to his mother.

11. He spends about $150 per day for breakfast and lunch, including cigarettes, about $60 on food and $60 on cigarettes, for six days per week, so about $1,440 per month. Although cigarettes are not mentioned under the item 'meals out of home', the figure of $3,000 included cigarettes. He was asked about expenditure outside the home and he included cigarettes in that figure. He is not exaggerating the figure of $5,000 or the other figures of expenditure.

12. He sometimes plays mahjong and bets on the horses, and he goes to Macau but not frequently, and he drinks occasionally. His credit card minimum monthly payment is $1,000 to $1,500.

13. Madam Lee gave evidence. She confirmed the truth of her two statements. At the time of the accident, the family lived together in a public housing unit in the Shun Tin Estate, they had lived there for several years but she could not say exactly when they moved there, but her son was not married when they moved there. Her husband was the registered tenant and their son and daughter lived there and when her son married in 1991 his wife moved in. her daughter moved out in 1993 when she got married.

14. As to the funeral expenses, her husband was born in Malaysia and his family are there. She and her son and daughter in law and their two children, and her daughter and her child, went to Malaysia for the funeral. Her mother is in China, but she has a heart condition and her health is not good. She is under medical attention all the time. Her mother in law has been paralysed down one side since before her daughter's marriage in 1993 and she is in a wheelchair.

15. Her son did not give her any money for family expenses at the time of the accident. He did give her $2,000 per month for each of the children as payment for caring for them. She did not use the money for family expenses, she used it for herself. The monthly payments commenced from the birth of the first child, and was increased at the birth of the second child. All along, prior to his marriage and prior to the birth of the children, her son did not give her any money and he lived on her husband's earnings. Her son married in 1991 and Kar Yi was born on 30th August 1991 in Malaysia and her daughter in law and the child came to live with them when the child was two months old, and since then her son and his family have lived on her husband's earnings.

16. Her husband gave her $13,000 per month and she gave him back $2,000. She did save some money. When she lived in Shun Tin she banked with the Hua Chau Bank, but when she moved to Tseung Kwan O she banked with the Standard Chartered Bank. After she used some money at the time of the accident, she had about $50,000 to $60,000 in the account, which came from savings of her husband and herself. After she moved, she did not keep the bank passbook. If there was any money left from the money give to her by her son she would go to visit places.

17. In 1980 her husband was working in the plastic moulding field and in 1985 he obtained a business registration to work in the plastic moulding field on his own. At that time he gave her $20,000 to $30,000 per month and they could not spend it all, so they had more money to save. Before her husband joined VSL in 1989, each of them had savings of $100,000 odd. After he joined VSL, his wages were low and they did not have enough to spend, so they used their savings.

18. She has not calculated the total of the monthly payments, but whatever it is, she has used the money to go on visits. She did not use any of it for the grandchildren or to meet the family expenses as a whole or the expenses of her son's family.

19. She lives with her son at Tseung Kwan O. Since they moved there in 1997, her son does not give her any money but he is responsible for all the expenses. Her son's expenses are heavier now and he is not able to give her the money.

LOSS OF DEPENDENCY UNDER FAO

Earnings at the date of the accident

20. The plaintiff was born in Malaysia and came to Hong Kong in 1974. He joined VSL on 7th November 1989 and was promoted to a Leading Hand in January 1996. Prior to working for VSL he ran a plastic moulding factory. He was 50 at the time of the accident.

21. In their letter of 26th February 2000, VSL enclosed the wage records of the deceased for 12 months prior to the accident, copy of employment contract, statistics of the three employees in job positions comparable to the deceased, and documents relating to the payment of salary increases to the deceased's salary package. They also advised that the deceased was promoted as Leading Hand in January 1996, that is salary package was changed to monthly rated, and he was eligible to join the retirement plan to which he would contribute 6% of his salary and the company 10%.

22. The letter advising of the promotion to Leading Hand is dated 2nd January 1996, and states that his salary for 1996 will be $8,800 with a year end bonus of $10,000. The wage record of the deceased shows his monthly wages together with overtime, allowances, provident fund, bonus, mis/back pay and annual leave, and finally the total income per month.

23. Paragraph 3 of the letter dated 6th May 2000 at page 100 of the bundle states that the bonus payment was for the period 1st January to 6th June 1996, but this refers to item (iii) of the appendix, which sets out a calculation of the year end bonus for 1996, for the period to the date of the accident, being $8,800 x 158/365 = $3,809.32.

24. Both the plaintiff and defendant work on the principle of an average monthly wage based on the earnings for the five months from the time of promotion, which is the appropriate manner of dealing with the wage at the date of the accident.

25. According to my calculation the average for the five months January to May 1996 is $13,967.80 ($12,768.19 + $11,133.42 + $12,003.74 + $12,637.72 + $14,489.25) + $10,000 / 12 + $528 (Provident Fund contribution), with the take-home pay being $13,439.74 (deduction of the MPF contribution). For the purposes of calculation I will round the figures up to $13,968 and $13,440.

Notional Income at the Date of the Assessment

26. In their letter of 6th May the defendant states that there are no changes for allowances of for workers since July 1998 up to the present time, and that the pay scales per day are - travelling $58, small tools $8, attendance bonus $32. The average wage for a leading hand effective from 1 July 1998 is $11,125, and calculating the travelling ($528 x 26), the small tools ($8 x 26) and the attendance bonus ($384 x 2) produces a monthly basic wage and allowances of $13,609. I have calculated that the wages for the six months January to May 1996 is $43,119.51 and the overtime $11,488.95, so that the overtime is 26.6% of the wages, producing a figure of $2,959 per month for overtime, which should be added to the $13,609, resulting in a figure of $16,568. With the addition of the 5% MPF, being $556, produces a total of $17,124. The figures result in a median of $15,546 or $15,004 excluding the MPF contribution.

Household Expenses

27. The defendant submitted that the claim for the dependency of the son, daughter in law and two grand-daughters which was brought in by way of amendment of the statement of claim should be rejected. The Social Investigation Report makes no mention of these dependants and neither does the application brought under the Employee's Compensation. The EC application was satisfied in the sum of $1,206,403 on the basis of the dependencies of the wife, mother and mother in law. The son's late evidence is questionable and the expenses for his family are highly exaggerated, particularly as to meals eaten out, books, stationery and clothing. The plaintiff could not account for the 'wage' paid by her son since 1991, which would total over $200,000. While she produced the deceased's bank accounts, she did not produce her own. If she did have a balance of $60,000 in her Wah Chio Bank account - which she says came from her husband - she would have produced that account on the issue of accumulation of wealth, since surely her legal advisers had advised her on this. Further, it is absurd to suggest that a couple with a joint income of $23,8000 were unable to meet the expenses of a family of four, and it is equally absurd to suggest that the son had been living as a dependent on the deceased throughout childhood and since he started work without contributing a single cent to his mother. The defendant does not accept the explanation put forward that the son's family's dependency was overlooked, and there has been no application to reopen the EC proceedings. The inclusion of the son's family's dependency is a belated attempt to achieve a larger dependency to provide the basis for the global approach under Harris, in order to avoid a negative award. The Social Investigation report is in evidence under the plaintiff's hearsay notice, it is evidence to the truth and no evidence has been put forward to explain why the Social Welfare Officer stated that the son's family were financially dependent.

28. The plaintiff accepts that the son's family should not depend on the deceased forever. The fact remains that at the time of the accident, the son's family were partially dependent on the deceased. It is just a fact of life that the son did not feel able to contribute to the household expenses although his family lived there. The housing unit was registered in the name of the deceased and the deceased had been paying for the general household expenses, and it is understandable that the son contributed to rely on the deceased for some time after his marriage. There is no need to show that the financial support by the deceased was a matter of necessity or that it was socially obligatory. It follows that it does not matter that the son could have made some contribution to the household expenses instead of spending money on cigarettes or mahjong. The fact is that he did not make any contribution.

29. Section 6 of the FAO provides for 'damages, other than bereavement, may be awarded to dependants in such proportions as reflect their respective injuries as a result of death'. The question is strictly one of whether on the balance of probabilities, the deceased would continue to provide financial support but for the accident. There is no need to show that such support was obligatory on the part of the deceased. As long as there was support in the past and in the balance of reasons suggesting that support would have ceased but for the death, there was actual dependency and the claim is sustainable.

30. It is irrelevant and futile to examine at length the expenditure pattern of the son's family. Dependency is not claimed by reference to that pattern. It makes little difference to the overall amount of the claim because if the son's family was wholly independent, then the value of the widow's dependency will increase, and this would in fact be to the advantage of the plaintiff as the widow's multiplier is higher.

31. The plaintiff recognises that at some stage the son's family would become independent when the son would make a sufficient contribution to the household expenses, so that a multiplier of one is adopted for the son's family's dependency claim.

32. Although the mother and mother in law are not in good health, they are still surviving, and it would not be right to adopt a multiplier of less than five, with support for this being found in Corbett v. Barking, Heavering and Brentwood Health Authority (1991) 2 Q.B. p. 409.

33. I am satisfied that I should disallow the claim for the son's family's dependency. This claim was brought forward at the eleventh house and finds no support in the Employees Compensation Proceedings or in the Social Welfare Report prepared in September 1997. As pointed out by counsel for the plaintiff, this will make little difference since the value of the widow's dependency will increase by the deletion of the claim for the son's family.

34. As to the household expenses themselves, counsel for the plaintiff submitted that it is difficult to expect the plaintiff could account for every detail of the family expenses, and the plaintiff tried her best to do so and the amount claimed is reasonable. As to the evidence that the son gave the plaintiff $4,000 per month for looking after the two children, but she testified that this was not combined with the general household expenses. On his figure of take home pay $14,606, the plaintiff's counsel calculates the dependency with deductions of $2,000 each of his own use, his share of family expenses, and his contribution to his mother and mother in law, leaving a figure of $8,606 for calculating the dependency.

35. Litton VP cautioned of the danger of treating assessments for pecuniary loss as a 'mere matter of mathematics' - Chan Pui Ki v. Leung On (1996) 2 HKLR 401 at 411. It has also been said that 'when estimates of spending are given, they are inevitably in round figures and inevitably will leave out incidental matters of expenditure which every person has in ordinary everyday life but may be difficult to justify or categorise on a simple basis' - Rogers JA in Tang Mei Ying v. Lam Pak Chu (CACV 319 of 1999 at page 4). The court should stand back and view the overall picture.

36. The plaintiff suggests that I should adopt a conventional percentage of the income of the deceased as dependency. The plaintiff referred to the qualification of the claim submitted and suggested that 59% should be adopted for the widow's dependency. This percentage is well within the normal pattern even taking into account the additional contributions to the extended family. Such a conventional percentage approach finds authority in Harris v. Empress Motors (1984) 1 WLR 212 at 216-217, where it was said that where there were no children then the percentage should be 66%. In Ho Pang Lin v. Ho Shui On (1994) 2 HKLR 313 at 318-320, Deputy Judge Jones followed this authority and applied a percentage of 75% notional median earnings, where there were children.

37. However, in Tsang Mei Ying v. Lam Pak Chui (1999) 2 HKLRD 807 at 811, Seagroatt J. in considering the principles in relation to the assessment of dependency, approved the calculation of common items of dependency, but did not approve the use of a conventional percentage. He said that

'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. Examples of these are rent, utilities (though these may vary according to exceptional use) and other fixed payments. Moreover as some dependants cease to be such, the dependency of those remaining in the household often increases. The modern practice is to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. These percentages tend to be used 'unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts' (per O'Connor LJ in Harris v. Empress Motors ... ... The flexibility of the approach and the need to have regard to the facts of the case and the evidence adduced in relation to dependency was illustrated by Beldam LJ in Owen v. Martin (1992) PIQR Q 151:

'No doubt there will be many claims under the Fatal Accidents Acts where parties agree that a conventional proportion is appropriate. I do not, of course, suggest that in arriving at the extent of the financial provision made by the deceased the court is bound to base its assessment precisely on the percentage of net earnings disclosed by sums spent for the benefit of dependants but the court is not entitled to cast aside altogether evidence which shows the proportion of the deceased's income actually spent for the dependants' benefit during his lifetime and to substitute a figure however conventional or appropriate in other cases.'

It is not appropriate to calculate dependency on a simple equal mathematical division amongst all dependants of the sum given by the 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 is a practice to be deprecated. It is not conducive to a calculation which is fair to either party.'

38. I accept the assessment of the household expenses since they seem reasonable. I base the loss of dependency calculation on the figure of $7,968.

The Multipliers

39. The defendant submits that the deceased was 50 at the time of the accident and that he would have retired as a leading hand between 55 and 60, taking up work as a general worker earning a smaller income of something in the region of $7,000 per month. The multipliers for the widow should be 5 years. For the mother the multiplier should be 3 years and for the mother in law, 2 years.

40. The plaintiff submits the multiplier of 9 for the deceased and the widow. The use of a common multiplier is consistent with the reasoning in Harris v. Empress Motors. For the mother and mother in law a multiplier of 5 is suggested by the plaintiff. The adoption of common multipliers is appropriate bearing in mind the general approach to assessing damages - Chan Pui Ki and Tsang Mei Ying, and in comparison the multipliers suggested are perfectly reasonable.

41. I do not accept that the deceased would have ceased work as a leading hand when he reached 50 or 55. He could quite reasonably be expected to continue to work on construction sites until he as 65. The MPF scheme is based on retirement at age 65.

42. The plaintiff cited several cases in support of a multiplier of 9 for a 50 year old at the time of the accident, as follows:-

Wong Suk Yee v. Wong Chap & Anr. (1975) HKLJ 270, where in April 1973 a multiplier of 10 was applied to a 48 years old deceased.

Lui Chuk v. Ng Chung Wing & Anr. (1975) HKLJ 27L, where in October 1973, a multiplier of 11 was applied to a 51 year old deceased.

Tong Lai Wan v. Cheung Shek Chung (1975) HKLJ 388, where in March 1975, the court applied a multiplier of 11 to a 53 year old man.

Tsui Shiu v. Choi Chung Jung (1977) HKLJ 400, where in April 1977 the court applied a multiplier of 11 to a 53 year old man.

So Sam Mui v. Lam Wing Tai (1976) HKLJ 132, where in June 1975 the court applied a multiplier of 12 to a 50 year old deceased.

Mary Patricia Gosling v. Fan Yu Lung (1977) HKLJ 153, where in March 1976 a multiplier of 10 was applied to a 48 year old man.

43. I find that for the deceased and for the widow the multiplier should be 9. I find that a multiplier of 5 should be used for the mother and mother in law, both of whom are still alive if not in the best of health.

44. On those findings, I calculate the loss of dependency $1,120,383 as follows -

FAO

Earning at death: $13,440 (including a sum of $528 which was contributed to the Provident Fund, hence the take-home pay was $13,968)

Earning at date of assessment: $17,124 (including [($10,600 + $11,650)÷2 x 5%] $556 being contribution to the Provident Fund), hence take-home pay was $16,568

LOSS OF DEPENDENCY

Value of dependency:

Immediate family

$13,968 - $2,000 - $2,000 = $7,968

($7,968 / $13,968) x 100% = 57% of the income of the Deceased

Others

(a) mother: $500 / $13,968 x 100% = 3.6%

(b) parents-in-law: $1,500 / $13,968 x 100% = 11%

Pre-trial dependency

Median income: $13,968 + $16,568 ÷ 2 = $15,268

Widow: $15,268 x 57% x 48 months = $417,732

Mother: $15,268 x 3.6% x 48 months = $26,383

Parents-in-law: $15,268 x 11% x 48 months = $80,615

Total: $417,732 + $26,383 + $80,615 = $524,730

Post-trial dependency

Widow: $16,568 x 57% x (9 - 4) x 12 = $566,626

Mother: $16,568 x 3.6% x (5 - 4) x 12 = $7,157

Parents-in-law: $15,568 x 11% x (5 - 4) x 12 = $21,870

Total: $566,626 + $7,157 + $21,870 = $595,653

Grand total of dependency: $1,120,383

Loss of Accumulation of Wealth

45. The issue under this head of damages is to the accumulation of wealth, which the deceased would have achieved 'by the time he would otherwise have died' - section 20(2)(b)(iii) of LARCO - in other words by the time of his natural death.

46. The crucial question is whether I am satisfied that the deceased would have achieved an accumulation of wealth by the time of his natural death. That depends on the propensity of the deceased to save money, his ability to save and his lifestyle. Although a savings pattern is one way to prove an accumulation of wealth, it is by no means the only way. There are cases where the court was prepared to make an award under this head even where there was little savings in the account of the deceased at the time of death.

47. There was not much savings in the bank account, but he had made some financial plans by taking out an insurance policy, and he was required to save under VSL's Provident Fund Scheme. Having regard to the lifestyle of the deceased and his family responsibilities as well as his income, it is reasonable to infer that he would have some savings after the dependency of some members ceased, so that he could have accumulated wealth by the time of his natural death.

48. The plaintiff accepts the principle that at the time of his natural death, the deceased's savings would be depleted, but that does not mean that there would be nothing left at the time of the natural death. It should be recognised that under the Provident Fund the savings would be managed and would generate substantial returns during the remaining working life of the deceased. Further, with the lump sum available at retirement, this could be invested and continue to generate income during retirement, and this would be more than adequate to cover the depletion during retirement. Although in Dall v. Choy Ying Wai (1997) 2 HKC, Cheung J. held that actuarial evidence is not admissible in calculating the quantum of loss attributable to the MPF, he did not decide that the court should ignore the fact that the MPF would generate more than the aggregation of savings by the time of retirement.

49. The defendant's case is that the deceased would have retired as a leading hand at 50 or between 50 and 55, and that he would have retired at the age of 60 as a general worker in jobs of a less physically demanding nature with a smaller income. Taking into account the deceased's earnings and his household expenses, there would have been no accumulation of wealth at the time of his retirement. If any accumulation of wealth were achieved at the time of retirement, he would have used the whole or part of it for his and his wife's living expenses. According to the Life Tables for 1991-2016, the average life expectancy for males in Hong Kong at the age of 60 is 20.47 years, so that the deceased would have been expected to live to 80 but for the accident.

50. The plaintiff's figures produces a loss of accumulation of wealth in the sum of $603,289. The defendant's figures produce a loss of accumulation of wealth of $96,870.

51. Keith J. reviewed the principles in Kwan Lai Kuen v. National Insurance Co. Ltd. (1998) 1 HKC 98 at 103-105. In Tsang Mei Ying's case, Seagroatt J. also considered the principles, and he went on to find that, although the deceased, aged 42 at the time of death, had not accumulated any savings by the time of his death, he was satisfied that on balance the deceased would have begun to accumulate some savings, and awarded a sum of $320,000 reduced from $336,000 for acceleration of receipt.

52. I am satisfied on the evidence before that the deceased did have a propensity to save, even if on a limited scale and I accept that a multiplier of 9 is appropriate for damages under this head. I calculate the loss in accordance with the plaintiff's method, taking into account my finding that the son's family were not dependent, and accepting that the deceased would have saved $2,000 per month during the period June 1997 to March 1999 and $4,000 per month after May 2001. The amount of loss of accumulation of wealth is $474,289, as follows -

(a) Prior to June 1997

Savings under the Provident Fund Scheme of VSL

$8,800 x 16% [see BD 44] x 12 = $16,896

(b) June 1997 to March 1999 (commencement date of the new scheme, see BD 157)

[$2,000 + ($8,800 + $11,125) / 2 x 16%] x 22 months = $79,068

(c) April 1999 to May 2001 (cessation of dependency of mother and mother-in-law)

During this period, he would be able to save $4,000. The savings by way of Provident Fund would be adjusted by reference to contribution of 10% under the new scheme (see BD 174),

($4,000 + $11,125 x 10%) x 26 months = $132,925

From June 2001, the cessation of dependency of mother and mother-in-law would mean more savings,

($4,000 + $11,125 x 10%) x (9 x 12 - 12 - 22 - 26) = $245,400

(d) Grand total of loss of accumulation of wealth

$16,896 + $79,068 + $132,925 + $245,400 = $474,289

53. In deciding whether that accumulation of wealth would be depleted in part or in whole at the time of the deceased's natural death, I accept the plaintiff's submissions that I can take into account the fact that the deceased's MPF fund would be available to him at his retirement and the fact that savings over the years of his working life would earn interest. Having taken those matters into account, I find that there would be the sum of $380,000 in the deceased's estate at the end of his natural life span.

54. In considering the amount of loss of accumulation of wealth that would be remaining at the date of the deceased's natural death. I have applied a deduction of about 20%. In Tsang Mei Ying, Seagroatt J. applied a deduction of approximately 5% to a figure to $336,000. I am dealing with a larger figure under this head of damages. I have taken the view that the more you have in your retirement fund, it is likely you will spend more during the years of retirement, still leaving sufficient for financial security.

Bereavement

55. The claim for bereavement is not in dispute and I allow this at $70,000.

Funeral Expenses

56. There is clear authority that the expenses of the funeral meal are not allowed - Wong Sau Wah v. Leung Kam Cheuk (1982) HKC 333, Lee Ping Tim v. Wong Kin Foon (1978) HKLR 347, and Loong Cho Hing v. Yam Kit Ying (1987) 2 HKC 482.

57. It has been held that it was not unreasonable to hold a buddhist service - see Wong Sau Wah v. Leung Kam Cheuk.

58. Amounts have been allowed for the coffin, a tourist car hired for the funeral, a tomb stone, undertakers, a prieest and white cloth - see Lee Ping Tim v. Wong Kin Foon.

59. Reasonable expenses of burial of the dead were recoverable and the expenses for two different funeral ceremonies held with a substantial interval of time between them was allowed - see Loong Choi Hing v. Yam Kit Ying.

60. In Lau Tak Ling v. Ngan Guen Min (1998) 2 HKC 75, it was held that the expenses of burial ceremonies were recoverable if it was reasonable in all the circumstances to hold the ceremonies. The status, financial position of the deceased and of his family and also their religious belief had to be considered. In that case the Deputy Judge held that the ceremony performed must have accorded with customary rites and religion of the descendants of the deceased and thus the expenses were reasonable in the circumstances, save for several small items.

61. The costs of a resting place for the urn in the sum of $23,700 was allowed in Hung Oi Mui v. Lam Kwok Leung, HCPI 205/1998 (unreported).

62. In this case the funeral expenses are claimed at $192,896, and receipts were produced. The remains were returned to Malaysia, and the family claims $62,805.79 for the funeral expenses including air fares and hotel costs. The Malaysia costs seem reasonable and I allow them save and except the figure of $1,920 for a mouring meal. As to the Hong Kong expenses, there also appear reasonable, save and except the mouring meal in the sum of $4,030. Deduction of these items leaves a balance of $186,946 which I allow under this head of damages.

63. Although a high award, the circumstances of the death were tragic with considerable public interest. I am satisfied that in the circumstances it was important for the widow and family to have the comfort of a funeral incorporating the full religious and customary rites according to their beliefs, including the return of the ashes to Malaysia.

Deduction

64. The employees' compensation of $1,026,430 will be deducted from the damages.

Interest

65. I award interest at the full judgment rate on the bereavement award from the date of death to the date of judgment - Kong Yuk King v. Wong Yiu Wing (HCPI 713 of 1998)

66. I award interest on the loss of accumulation of wealth at judgment rate from the date of judgment until payment - Court of Appeal in Hsu Li Lun v. Incorporated Owners of Yuen Fat Building (2000) 2 HKC page 365.

67. I award interest at half the judgment rate on the pre-trial loss of dependency and on the funeral expenses from the date of the accident until the date of judgment.

68. Thereafter all damages to carry interest at the judgment rate until payment.

69. The award for post-trial loss of dependency does not attract interest.

70. I leave the parties to calculate the actual interest.

Costs

71. I make an order nisi that the plaintiff shall have the costs of the assessment, to be taxed if not agreed, with the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. The costs order to be made absolute after the expiration of 14 days from the handing down of the judgment.

Summary

FAO

Representation:

Mr. Johnson Lam instructed by Messrs. Liu, Chan & Lam for Plaintiff

Mr. Tim Kwok instructed by Messrs. T.S. Tong & Co. for Defendant