Wong Hiu Shan v. Dragages Et Travaux Publics and Penta-ocean Construction Co. Ltd.

HCPI000598/1999

HCPI 598/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 598 OF 1999

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Coram: Master Cannon in Court

Date of Hearing: 7 June 2000 and 9 June 2000

Date of Delivery: 20 September 2000

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ASSESSMENT OF DAMAGES

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1. Cheng Chi Ming was one of six men who died on 6th June 1996 when the Rambler Channel Bridge 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 7th June 2000.

2. Mr. Cheng was born on 1st December 1966, and was aged 33 at the date of the accident. He left surviving him his wife, Wong Hiu Shan and three children, as well as his parents and parents in law.

3. Mr. Cheng was the sole breadwinner of his family. He lived with his wife and children in the same household, whilst his parents lived with his brother in another household.

4. Madam Wong Hiu Shan is the widow of Mr. Cheng and she gave evidence. Her three witness statements were admitted into evidence. It is her evidence that her husband worked as a causal construction worker for six months before joing Pacific Island Consultants (PIC), and that prior to working as a construction worker he as a fisherman. He worked six days per week and was always required to work on Sunday, so that his monthly income was about $30,000. He had only worked on the Rambler Bridge construction site for six working days, earning a total of $4,800, i.e. $800 per day. The Form 2 which was completed by the defendant is to the effect that her husband worked 26 days per month and on average would earn $20,800 per month. Since he only worked for six days the record would not show her husband's entitlement to overtime.

5. There are three children, and she and her husband and the children lived together in a public housing unit at Shaukeiwan. Her husband was the sole breadwinner and contributed about $17,000 per month for household expenses.

6. Her husband's parents lived with her brother in law and she would contribute $1,500 per month for pocket money. Her own parents live with her brother and she would also contribute $600 per month to her own parents for pocket money.

7. The monthly family expenses at the time of the accident amounted to $13,350 and these are itemised at paragraph 13 of her first statement. The utilities and clothing were family expenses. The medical expenses of $1,000 per month covered the five members of the family. The figure of $1,500 under the heading of books and stationery are in fact kindergarten fees for the youngest child. The sum of $3,000 is for private tuition fees for the three children. She has little education herself and cannot help the children with their characters. The expenses are approximate figures. Her parents in law are in good health, although her father in law is diabetic. They gave them $1,500 for tea money, but they did not need the money.

8. As to the funeral expenses of $380,105, her father in law is well-known among those in the commercial fishing business in the Sai Kung area, and her husband has an extensive family, so that the funeral rites and attendant ceremonials were considerable, and had been handled by her father in law. There is documentary support for these expenses. The expenses covered the funeral services, three Taoist funeral ceremonies, the memorial tomb and the graveyard.

9. As to savings, her husband had three accounts, as can be seen from the Inland Revenue Department Estate Duty Schedule - HSBC ($251.90), Bank of China ($142.09 and $102,808.70), and Wing Hang ($1,607.90 and $100,064.66). Her husband had taken out a life insurance policy for which he paid US$735.70 annual premium.

10. From time to time her husband would give her money for saving. She has a sum of $200,000 deposited with the Standard Chartered Bank, which came from her husband's earnings as a fisherman and construction worker. She was a full time housewife, and the money came from her husband. She has three bank accounts - HKSB, Standard Chartered Bank and Bank of China.

11. As to the HKSB she has had a savings account for 8 to 10 years. As to the Bank of China, she has had that account for several years. She used this sometimes for expenditure relating to her son, but there is not money in it. She has no fixed deposit with the BOC.

12. As to the Standard Chartered Bank, she has had this for a long time, and she used it when she was working. The transaction history shows that the account was opened 10 years ago.

13. As to the deposit of $200,000, this was accumulated from money given to her by her husband over a period of time. For about 5 to 6 years after her marriage, when her husband was fishing, her father in law paid all the household expenses, and when her husband had some money he gave it to her, and she saved it up. Between the time of marriage until he passed away, he saved $200,000 and she saved $20,000. In about 1991, when her father in law and her husband worked in partnership, her father in law ceased paying the household expenses.

14. The deposit of $200,00 came from money accumulated in her other bank accounts, which in turn had come from money given to her by her husband, including the time when he was a fisherman. Initially, the fixed deposit was smaller, i.e. $50,000, but it grew over the years to $200,000. She cannot remember when she instructed the bank to transfer the $200,000 into a three month fixed deposit account.

15. The children are now studying Form 2, Primary 5 and Primary 4, and she will support them to pursue university studies. She is considering sending them to England for further education since her husband's uncle resides there and has indicated that he is willing to look after the children.

16. When her husband was a fisherman, he could earn about $30,000 to $40,000 for one errand. When the fishing was good, he could sometimes earn $100,000, but sometimes he would earn nothing at all. $30,000 - $40,000 for a fishing trip not much, since expenses including wages for workers has to be paid out of it. If her husband could have earned $30,000 to $40,000 per month clear he would not have gone to work on the construction sites. Her husband would return to fishing if it improved because working on construction sites is dangerous. That was why he had not sold his boat at the time of the accident.

17. Her husband was a hard worker and did a lot of overtime when he became a construction worker. He would leave for work as early as 5 am and return home at about 11 pm or even midnight. Sometimes he would work overnight.

18. Her husband had worked on another bridge site prior to the Rambler Channel Bridge project, which was urgent, and he worked overtime. He worked alternate weeks on day and night shift, with a higher salary for the night shift. Day shift was paid at $800 per day and night about $1,200 per night.

19. Her father in law is now retired and her brother in law is still working in commercial fishing. Her husband was very hard working and she believes that he would have worked as a fisherman if he experienced a lull between construction projects.

20. When he went fishing, he would be away at sea for an average of 20 odd days per month. He changed to construction site work, because the fishing was poor, and the construction site work are more stable. She does not know if it is called overtime, but he usually work late, returning home about 11 pm.

21. After the accident she received over $374,400 ex gratia from the company and the company paid her $20,800 per month from July 1996 to June 1997.

22. She and her husband came from fishing families, and her husband helped his father on the family boat when very young. In 1985 when they were married, her husband worked with his father and he received a share of the income and in about 1989 her husband and his father worked in partnership. She cannot be sure, but she thinks that between 1985 and 1989 he husband's income from fishing was on average about $10,000 to $20,000 per month. Prior to her husband becoming a construction site worker, his income averaged $30,000 per month. For the years 1998 to 1995 she cannot be sure of her husband's income, but he gave her $10,000 per month for the family expenses. He also paid business expenses, paid insurance, and saved money himself.

23. She knew what her husband earned on the construction sites because he worked regularly and he worked overtime.

24. Her husband had the habit of saving from his income. When he was a fisherman, he kept the money on the boat and when it accumulated he would deposit it in the bank. Her father in law held a mechanic's licence and her husband held a master's licence. Her husband normally worked on the boat with her father in law helping out when it was busy. The boat was a 90 foot mechanical trawler owned at various times by her husband, her father in law and, after her marriage, by her father in law, her husband and her brother in law jointly. She thinks it cost between $800,000 to $900,000. Her father in law retired after the accident and the boat was sold, she thinks for about $600,000 or $800,00, but she is not sure.

25. There was another 90 foot boat jointly owned by them for about ten years. She does not know the sale price, and the money was used by her father in law in the business.

26. Her husband owned a 70 footer, which was bought in about 1991 and sold in 1994 for about $230,000, which her husband put into the bank and which is reflected in the $200,000 shown in the IRD Estate Duty form. Some of the sale proceeds from the boat - $40,000 or $50,000 - consists of proceeds of sale of the boat, and is reflected in her $200,000 held in the Standard Chartered Bank.

27. The fishing business was slowing down for about six months before her husband took up work on construction sites.

28. She does not know whether her husband paid tax through the Fish Market, and she has no documents now relating to income and expenditure for the fishing business.

29. Ms. Wendy Ng gave evidence for the defendant. She is the Senior Personnel Manager of Dragages et Travaux Publics (HK) Ltd. (Dragages). Her witness statement was admitted into evidence. In a joint venture, Dragages and Penta Ocean Construction Co. Ltd. carried out the construction work on the Rambler Bridge which was part of the new airport project. The deceased was recruited through Takamura as a rigger. After the accident, she received wage information from Takamura Ltd, and was informed that the deceased was paid $800 per day and that he had worked for six days only. Based on the information, she put down $800 per day as the deceased's wage in the Form 2. There was a wage increase of between 6 - 7.5% in January 1998, but there have not been any increases since then due to negative economic factors. She produced, inter alia, documents relating to the records of two riggers employed by Dragages on a monthly basis since 1998, which show that no increases have taken place since 1998. They work 26 days per month. The records show basic wages of $10,700 and $11,600 respectively, and together with their overtime records, their average monthly totals for 1998 are respectively $17,860 and $18,921, and for 1999, they are respectively $16,398 and $17,882. It appeared that the deceased was employed on a casual basis. Over the last two to three years, she believed that there has been a reduction in the number of working days for casual construction site workers or in difficult times no work at all. Construction workers employed by companies such as Dragages would enjoy stable employment and income. Given the state of the economy since 1998, it is probable that income on a monthly employed basis would be higher than that on a causal basis, or more or less the same. She also produced a record of the wages of the only rigger employed between June and November 1995.

30. Dragages employs some riggers on a monthly salaried basis and at the time of the accident their salary was $15,680 per month, and she was told that the daily rate was $800. She was referred to page 201 of the documents bundle, which relates to employee No. 13364, with a position as a rigger, dated 21st (or 27th) May 1994, which shows his salary/wages as $15,680. Because Dragages would not have enough employed riggers for a job, it is the common practice to subcontract part of a project out, and recruit workers in this way.

31. As to the Watson Wyatt report for 1999, Watson Wyatt are consultants and she was not involved in the preparation of this report, although Dragages participated in supplying data, which was analysed by the consultants. As to paragraph 7 of her statement, she confirms that there was an increase of wages between 6 - 7.5% in January 1998. Wages were increased in January 1997 but she does not have the figures with her today. It is correct to say that a number of riggers make substantial amounts by way of overtime allowance, the overtime rate is 1.3 times the normal hourly rate. At present, Dragages has two monthly salaried riggers, and from 1996 to now, Dragages would not have employed more than five riggers, although about ten have recently joined. They are paid on a daily rate of $380. Daily workers have overtime on many occasions. The take home pay of either a monthly or daily rigger would be about the same.

LOSS OF DEPENDENCY UNDER FAO

Earnings at the date of the accident

32. The plaintiff says that the earnings were $30,000 per month ($1,000 per day for 30 days). The defendant says that at best the earnings were $20,800 ($800 per day x 26 days), but that on the evidence of the family expenditure and the savings record, the probable earnings were $17,000 per month.

33. Both parties investigated this issue but there is no incontrovertible evidence available. The deceased only worked for 6 days. The widow maintained her position under cross examination that her husband earned $30,000 per month at the date of his death. The Form 2 shows that the deceased was paid $800 per day, and Ms. Ng says that she received that information from the sub contractor. The defendant paid the plaintiff $20,800 per month after the accident, ex gratia.

34. Ms. Ng for the defence agreed that it was usual for construction site workers to work overtime. The records of payments made to the defendant's own riggers show substantial overtime allowances, amounting to a substantial portion of their take home pay. There is evidence that the project was in a hurry and that overtime was necessary.

35. The defendant points to the salary scales of the defendant's own riggers and the statistics as to earnings for heavy load coolies, which the defendant says is the equivalent to a rigger, and it was suggested that the $800 per day could be read as being a fixed daily wage with no overtime, or that it included overtime, and based on the heavy load coolie wage of $641 as at June 1996 then $159 represented overtime. It was further submitted that if the deceased was a prudent person, the Hong Kong Bank account would have reflected the surplus.

36. The overall picture suggests that the deceased's earnings might have been less than $20,800, with the probable monthly earnings more like $17,000 in line with the wages of the defendant's riggers and the bank accounts, or even less. According to the record of employee No. 13364, the defendant's riggers earned $15,680 per month basic salary, and between June and November 1995, employee No. 13364 earned $16,968, including overtime. The overtime record for the defendants two riggers for the first three months of 2000 show $4,933 and $6,239, which averages out to $5,586 per month. For 1998, it average out at $7,240 per month and for 1999 $5,990. There are always variations in overtime between employees and the needs of the job. The records relate to a very limited number of riggers and cannot be treated as conclusive one way or the other.

37. If the plaintiff was earning $30,000 per month consistently, taking into account the family's expense of about $17,000 per month and the plaintiff's prudence, the balance of about $13,000 would be reflected in the bank history. A prudent man earning $30,000 per month consistently, would have accumulated a surplus in the bank and he would have paid tax. The bank history supports the defendant's stance that the plaintiff earned about $17,000 per month at the time of the accident.

38. The plaintiff's case that the deceased earned $30,000 regularly every month is not sustainable. The deceased worked as a construction worker for about six months prior to the accident and for six days on this project. What can be derived from the evidence is that there were occasions when the deceased earned more or less on the construction sites. There is no evidential basis for the plaintiff's evidence and it can at best be treated as a belief.

39. The defendant contends that I should not assume that the deceased earned $30,000 or $20,800, but I should consider the wider picture in arriving at a finding of probable monthly earnings.

40. On the issue of the earnings at the date of death, there is the ex gratia payment of $20,800 paid to the widow. The widow did not waver from her statement that her husband earned $1,000 per day, and that he consistently worked overtime in the past. Ms. Ng gave evidence of the wages of monthly employed riggers which indicate lower wages. However, the deceased was employed on a casual basis and the comparison is not necessarily valid since the nature of causal work usually involves a higher rate. Further, earnings can vary considerably depending on the circumstances prevailing at the time, including the availability of workers and the type of work. There is the further peripheral consideration that normally ex gratia payments are based on the basic wage, exclusive of overtime. Having considered the totality of the evidence, and in particular the matters I mention, I am satisfied that the deceased's basic wage was $20,800, i.e. $800 per day.

41. As to the issue of overtime, I am satisfied that overtime would be available on a project such as this since prompt completion would be advantageous to the contracting parties. I am satisfied that the deceased was a hard working man. The plaintiff says that he would work six days a week and was always required to work on Sundays. On the previous, he would work alternate weeks on day and night shift with a higher salary on the night shift, and that his income was about $30,000 per month. Doing the best I can on the evidence before me, I find that the deceased would have worked 28 days per month at the basic wage was $800 per day. I find that on 21 of those days he would have earned $1,000 per day, representing $200 per day overtime. According to my calculation this produces an income of $26,600 per month [$22,400 (28 x $800) + $4,200 (21 x $200).

Notional Income at the Date of the Assessment

42. The letter from the Census and Statistics Department state that statistics are not available for a rigger, but that a heavy load coolie is a similar occupation and that the average daily wages of that occupation was $641.3 in June 1996 and $740.9 in November 1999 (the latest available figure), which is a 19% increase. Miss Ng for the defendant gave evidence of an increase of 7 - 9% for 1997 and 6 - 7.5% for 1998, and 0% thereafter, the median being 14.75%. There is the evidence of the zero increase for 1998 with regard to the two riggers employed by Dragages.

43. The Government bulletins covering employment and vacancy statistics, wage statistics, the consumer price indices, and the latest labour market situation paper produced by the Task Force on Employment dated March 2000, were referred to. Copies of the 1999 Wages Report prepared by Watson Wyatt were also referred to, but there were a limited number of participants and there was no explanation of the method of analysis. While I find these reports and bulletins of some value in indicating the progress of the economy in the interim since the accident, I do not place great weight on them.

44. On this issue, I find that the notional income at the date of assessment should be arrived at on the basis of the salary increases awarded by the defendant to its riggers, and I find this to be 14.75%. I am satisfied that I should give weight to the evidence of the defendant on increases granted to riggers rather than the more general government statistics relating to heavy load coolies.

45. On that finding, the notional income at the date of assessment is $30,523.50, rounded up to $30,524.

46. These figures produce a median of $28,562.

Household Expenses

47. The defendant submitted that since the plaintiff had difficulty remembering details of the family expenses that they should be reduced by about 15%, and provided detailed dependencies on the reduced figure.

48. The plaintiff submitted that it would be difficult to expect the plaintiff to recall the details of the family expenses and that I should not be overly concerned with the details. 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.

49. The plaintiff suggests that I should adopt a conventional percentage of the income of the deceased as dependency, and referred to two scenarios prepared by for the plaintiff, which shows 68% and 47%, depending on the findings made by me on the evidence. These percentages are 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 children then the percentage should be 75%. 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.

50. 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.'

51. The household expenses figures and the figures for rent and utilities are reasonable, including the figure of $1,500, which is in fact kindergarten fees and not books and stationery. I also accept the $3,000 for tuition fees for the three children. It is a very common practice to provide tuition for children, given the competitive nature of school placement, even at primary level. This practice is even more understandable where as in this case the parents themselves may not be able to tutor the children. I do not accept that there should be any overall percentage deduction on these figures. They are an assessed figure, but in my view there is nothing unreasonable about the figures, and I allow them as claimed in the sum of $15,350.

The Multipliers

52. The defendant submits that the deceased was born on 1st December 1962 and was 33-6/12 years at the date of the accident, and that he would have retired as a rigger (or heavy load coolie) between 50 and 55, with retirement from a lighter job (such as watchman) at the age of 60. His working life would be to 60, that is 26.5 years. When selecting multipliers a significant period of up to ten years with substantially lower earnings before retirement should be taken into account and suggests a multiplier of 13 for him, with 14 for the widow who was age 34 at the accident, 6 for the parents aged 64 and 62, 5 for the parents in law who were 70 and 65, for the three children a multiplier based on 18, which would be 97 months for the elder son, 133 months for the daughter and 147 months for the younger son.

53. The plaintiff submits that the multiplier should be 16 for the deceased and the widow, with 10, 13 and 14 for the children, 10 for the parents and 8 for the parents in law. The wife was 34 at the time of the accident, and for the purpose of dependency it is appropriate to adopt a multiplier similar to that of the deceased since her natural life span must be longer than the working life span of the deceased. The elder son was almost 10 at the time of the accident and a multiplier of 10 would be appropriate. The daughter was 7 at the time of the accident and it is likely that she will go on to tertiary education, and a multiplier of 13 is suggested. The younger son was 5 at the time of the accident and a multiplier of 14 is suggested. The plaintiff adopts the approach found in Harris v. Empress Motors in suggesting a common multiplier of 12 for the children. The adoption of an average multiplier of 6 for the parents and parents in law is also appreciated - Lam Pak Hay v. Manfield Building Contractor, HCPI No. 519 of 1997, 25/1/99 (unrep.) Master Lok - and bearing in mind the general approach to assessing damages - Chan Pui Ki and Tsang Mei Ying. By comparison the multipliers by the plaintiff suggested are perfectly reasonable.

54. I do not accept that the deceased would have ceased work as a rigger 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.

55. The multiplier tables from the Hong Kong Law Journal for the years 1990 to 2000 were before me, and included several cases of fatal accidents where multipliers ranging from 12 to 15 were applied to deceased whose ages ranged from 32 to 37, with some of the multipliers being agreed by the parties. I find support for a multiplier of 15 in three recent cases - Liu Kang Fun v. Tsui Wai Ping (PI No. 666 of 1995) where in December 1999, Master Barnes applied a multiplier of 13 in the death of a 35 year old man; Tsang Mei Ying v. Lam Pak Chiu (PI No. 544 of 1998) where in April 1999, Seagroatt J. applied a multiplier of 13 to a 42 year old man; and Lam Pak Hay v. Manfield Contractors Ltd. (PI No. 519 of 1997) where Master Lok applied 14 in the case of a 34 year old man; Wang Chang Seu Ying v. Axelson Co. Ltd. (HCA 3120 of 1986) where a multiplier of 14 was adopted in the case of a 34 year old man; Cheung (Linda) v. Choi Lin Kiu (HCA 6887 of 1984) where a multiplier of 14 was adpoted for a 34 year old man; Leung Siu Chun v. China State Construction Engineering Corp. (HCA 4704 of 1990) where a multiplier of 14 was applied to a 34 year old deceased.

56. I find that for the deceased and for the widow the multiplier should be 15. As for the children, I allow a common multiplier of 13 and for the parents and parents in law I allow an average multiplier of 6 - see Corbett v. Barking, Havering and Brentwood Health Authority (1991) 2 QB p. 408.

57. Based on these findings, I follow the method used by the defendant for calculating the dependency, as follows :-

FAO

Earning at death: $26,600

Earning at date of assessment: $30,524 ($26,600 x 114.75%)

LOSS OF DEPENDENCY

Value of dependency:

Immediate family

$15,350 - $1,500 = $13,850

($13,850 / $26,600) x 100% = 52% of the income of the Deceased

Others

(a) parents: $1,500 / $26,600 x 100% = 5.6%

(b) parents-in-law: $600 / $26,600 x 100% = 2.3%

Pre-trial dependency

Median income: $26,600 + $30,524 ÷ 2 = $28,562

Immediate family: $28,562 x 52% x 48 months = $712,908

Parents: $28,562 x 5.6% x 48 months = $76,775

Parents-in-law: $28,562 x 2.3% x 48 months = $31,532

Total: $712,908 + $76,775 + $31,532 = $821,215

Post-trial dependency

Immediate family: $30,524 x 52% x (15 - 4) x 12 = $2,095,167

Parents: $30,524 x 5.6% x (6 - 4) x 12 = $41,024

Parents-in-law: $30,524 x 2.3% x (6 - 4) x 12 = $16,849

Total: $2,095,167 + $41,024 + $16,849 = $2,153,040

Grand total of dependency: $2,974,255

Loss of Accumulation of Wealth

58. 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.

59. The defendant's case is that the deceased would have retired from physical work at age 60 and would have taken up less strenuously physical work thereafter, and that the multiplier should be 13 years.

60. If the deceased earned $17,000, no savings would have accrued. If the deceased earned $20,800, the most that he could have saved was 15% of $7,696, subject to my findings on expenses. The calculation of the loss on $20,800 is $59,497 for pre-trial accumulation of wealth and $143,064 for future accumulation of wealth.

61. As to the deceased's life expectancy, he would be 38 now if he had lived, and that would give him an expectancy of 40.11 years, with an expectation of living to 78 but for the accident, which means that he would have 18 years retirement. During those years of retirement he would have depleted the accumulation of wealth by the time of his natural death.

62. As to the Provident Fund, which commences in January 2001, the deceased would be 38, with a working life of 22 years, so that a multiplier of 8 should be used, and the calculation would produce a figure of $114,566 under this head, which would be used up by the time the deceased's natural death.

63. The plaintiff accepts the principle that the savings would be depleted between retirement and natural death. The question before me is whether there would be anything left behind after such depletion. I should not ignore the fact that savings can be invested to generate income returns of a recurrent nature during the deceased's working life. This would be further enhanced by the fact that there would be the lump sum available to the deceased from the MPF. 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.

64. As to evidence of propensity to save, there were substantial savings in the plaintiff's account at the time of his death. Whether those savings were derived from the sale of the boat, and as a capital asset is evidence of savings just as much as a house or a car, this certainly demonstrates a propensity to save. It is important to note that the deceased was able to keep the money in the bank accounts as savings. The evidence of the plaintiff clearly establishes that the money in the plaintiff's own account was accumulated between the marriage in 1985 and the accident in 1996.

65. As to the argument that the savings would be used for the education for the children, there are the existing savings and the interest on them would be more than adequate to cover education expenses. There would be additional savings arising from the sale of the 90 foot trawler, which in fact was sold after the accident. The claim here is in respect of future savings.

66. On the plaintiff's figures there is a pre-December 2000 (before MPF) loss of $106,000, from December 2000 (with MPF) to June 2002 of $57,000, from June 2002 (cessation of dependency of parents and parents-in-law) of $600,000. A total figure of $763,000.

67. 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.

68. I am satisfied on the evidence before that the deceased did have a propensity to save. There is evidence of the savings in the bank in the deceased's name at the date of his death, as can be sen from the Inland Revenue Estate Duty Schedule, and the savings in the plaintiff's account, which I accept came from her husband's earnings. These were accumulated from the time of the marriage in 1985 to the date of the accident, during which time three children were born into the family, with the expenses attendant on those births. It is immaterial whether the savings were derived from the sale of the boat or not. The boat represents capital and since its sale the money has been held in the bank. Clearly the deceased had a propensity to save.

69. I follow the plaintiff's method to calculation for the loss of accumulation of wealth, incorporating as it does, the cessation of the dependency of the parents and parents in law, and in particular the commencement of the MPF in January 2001, which I am satisfied are all matters which should be taken into account. Again, I apply a 15 year multiplier in calculating the loss of accumulation of wealth, the total loss of accumulation of wealth is $1, 243,000, as follows:-

(a) Pre-December 2000 (before MPF)

After deducting dependency and his own share of household expenses, the balance of the Deceased's income was: $28,562 - $15,350 - $1,500 - $600 = $11,112

Out of that, the Deceased would have been able to save $5,000 per month

$5,000 x 53 months = $265,000

(b) December 2000 (with MPF) to June 2002

There will be an additional sum of $1,000 representing the employer's contribution to the MPF.

$6,000 x 19 months = $144,000

(c) June 2002 awards (cessation of dependency of parents and parents-in-law)

The cessation of dependency of mother and parents-in-law would mean more savings accumulated

$8,000 x (15 x 12 - 72) = $864,000

(d) Grand total of loss of accumulation of wealth

$265,000 + $114,000 + $864,000 = $1,243,000

70. 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 $1,000,000 in the deceased's estate at the end of his natural life span.

71. 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 of $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 financial security.

Bereavement

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

Funeral Expenses

73. 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.

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

75. 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.

76. 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.

77. 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.

78. 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).

79. In this case the funeral expenses are claimed at $380,105, and receipts were produced.

80. I allow the claim in the sum of $380,105.

81. 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.

Deduction

82. The employees compensation of $1,663,950 will be deducted from the damages.

Interest

83. 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)

84. 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.

85. 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.

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

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

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

Costs

89. 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 Plaintiffs

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