Wong Sau Kam and Another v. Shum Yuk Fong
Read the full judgment text of HCPI 798/1998 on BabelCite. This High Court CFI judgment was delivered on 11 October 2001.
1. This is a fatal accident case in which the plaintiff, being the Administrators of the Estate of Yeung Ki Yee, deceased ("the deceased") claims damages on behalf of the estate as well as the dependants of the deceased. The claim arose as a result of an accident which occurred at about 6:15 p.m. on 15 November 1995 when an unauthorised canopy erected outside Shops F, G and H of Cheong Hing House projecting over Yan Oi Court collapsed onto the deceased causing him severe physical injuries from w
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HCPI000798B/1998 HCPI 798/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO.798 OF 1998 ----------------------
----------------------- Coram: Hon Suffiad J in Court Dates of Hearing: 4 - 5, 9 - 13 and 26 July 2001 Dates of Written Submissions: 6, 17 and 27 August 2001 Date of Judgment: 11 October 2001 ----------------------- J U D G M E N T ----------------------- 1.This is a fatal accident case in which the plaintiff, being the Administrators of the Estate of Yeung Ki Yee, deceased ("the deceased") claims damages on behalf of the estate as well as the dependants of the deceased. The claim arose as a result of an accident which occurred at about 6:15 p.m. on 15 November 1995 when an unauthorised canopy erected outside Shops F, G and H of Cheong Hing House projecting over Yan Oi Court collapsed onto the deceased causing him severe physical injuries from which he subsequently died. At the time of the accident the deceased was exercising his public right of way and walking along Yan Oi Court. The unauthorised canopy which collapsed onto the deceased was erected over the entrance of Shops F, G and H on the ground floor of Cheong Hing House and at the time of the collapse of this canopy the 1st defendant was the registered owner of these three Shops F, G and H on the ground floor of Cheong Hing House. 2.This claim was originally brought by the plaintiff against seven different defendants. However the proceedings have been discontinued by the plaintiff against six of those defendants leaving only the 1st defendant as the remaining defendant at trial. 3.After the accident, the matter was investigated by the Buildings Department which prepared a report on the collapse. The investigations revealed that the collapsed canopy was a metal truss type structure about 11 m in length in which projected approximately 2.7 m from the face of Cheong Hing House and the height of approximately 3 m above the ground. The trusses were in a rusty and dilapidated condition and the unauthorised canopy was built on and projected from the unauthorised canopy which was situated at the first floor level projecting over Yan Oi Court. The report further indicated that other unauthorised canopy extensions had been erected for the entire length of Cheong Hing House over Yan Oi Court all of which had been erected over the authorised canopy. The unauthorised canopies were however separate structures separated by small gaps in between each other. The conclusion reached by the Buildings Department in this investigation was that the collapse of the unauthorised canopy over Shops F, G and H was caused by :
4.This conclusion of the Buildings Department as to the cause of the collapse was accepted and concurred with by all the other experts involved in this case. 5.The report from the Buildings Department further indicated that from examination of the condition of the collapsed canopy, it was concluded that the collapsed canopy had most likely been erected for some twenty years or thereabouts. 6.The plaintiff obtained an expert report from Mr Robert Watkins, a chartered engineer and registered structural engineer, on the collapse of this canopy. Mr Watkins was instructed in this matter well over four years after the collapse and therefore had no chance of seeing for himself first-hand the actual situation of the collapsed canopy and matters relating thereto. He therefore had to rely heavily on the findings as well as photographs taken by the Buildings Department at the time of the collapse. In so far as the cause of the failure of the unauthorised canopy goes, Mr Watkins was in total agreement with the findings by the Buildings Department in their investigation. He further took the view that even if the unauthorised canopy had been safe when the erected, nobody had taken any steps to maintain the external wall and the original canopy of the subject building as well as the unauthorised canopy so as to ensure that it would remain safe. 7.Mr Watkins further expressed his opinion that any competent professional, upon a thorough inspection of the unauthorised canopy in this case, would have no difficulty in concluding that the canopy was :
8.Expert evidence was also called by the 1st defendant. The expert rely on by the defendants in this respect was Dr James Lau who is both a structural engineer as well as an Authorised Person registered with the Buildings Department. Dr Lau had given a report in which he came to the conclusion that the defect which in his opinion had caused the collapse of the canopy could not have been discoverable upon reasonable examination and on that basis he concluded that the collapse was due to a latent defect. 9.Under cross-examination it became apparent that the latent defect which could not be discovered upon reasonable examination stated by Dr Lau in his report referred to the rusted expansion bolts of the unauthorised canopy which had been embedded into the concrete of the authorised canopy. It was due to the fact that they had been embedded inside the concrete of the authorised canopy which led Dr Lau to the conclusion that the collapse was due to a latent defect. 10.However Dr Lau did acknowledge when he was in the witness stand that the rusted trusses and angled steel bars could have been discoverable to be in the condition that they were in upon a reasonable examination of the unauthorised canopy and that upon discovering the rusted condition that they were in this would have led a reasonable contractor to form the conclusion that the unauthorised canopy was in a dangerous state and should have been taken down before the collapse. 11.There is also evidence before me which is not in dispute and which show that the 1st defendant purchased Shop F as a single unit in February 1976. In May 1976 she purchased shops G and H together. 12.The 1st defendant gave evidence that she had viewed all three shops before she purchased them in 1976. At that time there was already canopy extensions over the original authorised canopy above the shop entrance to these three shops but that she did not know who had constructed these canopy extensions. In so far as Shop F was concerned which is the single unit purchased by her in February 1976, she remembered that when she went to view the premises before purchasing it the canopy extensions over the shop entrance to Shop F consisted only of a zinc sheet. However she cannot remember what sort of canopy extensions there were in respect of Shops G and H when she purchased them. 13.The 1st defendant also gave evidence that when she purchased Shops G and H, those premises were rented out to a tenant who carried on the business of a furniture shop. When she went to view those premises in 1976 she remembered seeing the name of a furniture shop decorated over the shop entrance at Yan Oi Court. When she purchased these premises she had also taken over the tenancy of those premises. The tenancy of the furniture shop came to an end at the end of May 1978. On 1 August 1978 there was a change of tenant, the new tenant taking over all three shops namely F, G and H where he carried on the business of a restaurant by the name of Kwun Tong Chiu Chow Restaurant. In February 1984 there was a change in tenant and the new tenant renamed the restaurant at Shops F, G and H to Wing Yuen Restaurant. Later in July 1987 there was again a change of tenant which resulted in the change of the name of the restaurant to Tak Ming Restaurant. Still later in April 1993, yet a further change of tenant again resulting in the change of the restaurant's name to Ho King Restaurant who continued up till the time of the collapse. 14.In each case when the 1st defendant visited these premises she had seen the different names of the different restaurants decorated over the marble cladding at the front entrance to these premises facing Yan Oi Court. In each case, the names of the various restaurants which had operated at Shops F, G and H at different points in time were decorated in the same position namely over the marble cladding immediately over the entrance to these premises facing Yan Oi Court. 15.There is also evidence before me in the form of photographs taken by the Buildings Department immediately after the collapse which show the debris from the collapsed canopy strewn along that part of Yan Oi Court immediately in front of Shops F, G and H of Cheong Hing House. From these photographs it is apparent from the debris of the collapsed canopy that fluorescent light tubes can be seen installed into the false ceiling on the underside of the unauthorized canopy. At least two electric fans, the type which is fixed on walls and which swings from side to side when in operation can also be seen lying among the debris of the collapsed canopy. 16.A further piece of evidence which should be mentioned and which is significant is a drawing of the cross-section of the unauthorized canopy showing how it was constructed and how it stood before the collapse. This drawing of the cross section was prepared by the Buildings Department for the purpose of the investigation of this collapse. From this drawing of its cross section it can be readily seen that the marble cladding (on which the names of the different restaurants appeared) and the unauthorized canopy was in fact one structure connected to each other. It is also apparent from the photographs referred to above, that when the unauthorized canopy collapsed, the marble cladding also came down with it thus further indicating that the two were in fact one single structure and connected to each other. Findings of fact 17.There is no direct evidence in this case as to who had erected the unauthorized canopy which collapsed. There is also no direct evidence as to when it was erected apart from opinion contained in the report of the Buildings Department that from the condition after its collapse, it was thought that the unauthorized canopy had probably been there for some 20 years. 18.However, from all the evidence in the case, in particular those which I have alluded to above and from the 1st defendant's evidence that there was only a zinc sheet used as a canopy over the entrance of Shop F when she purchased Shop F in early 1976, that this unauthorized canopy which collapsed was not there when the 1st defendant acquired Shop F and even when she acquired Shops G and H later that same year. This therefore leads me to the conclusion that the unauthorized canopy which collapsed was erected only after the 1st defendant had rented out Shops F, G and H as one entire premises and which was used as a restaurant by the tenant of the 1st defendant. It matters not which of the 1st defendant's tenants had erected it but in the light of the opinion expressed as to the age of the collapsed canopy, in all probabilities it would have been the first of the restaurant tenant of the 1st defendant. That would suggest that the unauthorized canopy was erected some time around the middle part of 1978, probably erected with all the necessary renovations and decorations before the Kwun Tong Chiu Chow Restaurant started business in August 1978. 19.I further find that when the unauthorized canopy was erected, fluorescent light tubes were installed at the ceiling of the unauthorized canopy over the front entrance to the restaurant situated at Shops F, G and H, undoubtedly to better illuminate the entrance to the restaurant and to improve the conditions of the premises in which the restaurant was situated. 20.I also find that when each of the succeeding restaurant operators took over the tenancy of those premises, they also took over the unauthorized canopy with all the existing facilities which was used by each succeeding restaurant owner or operator to his own benefit. All that was changed was the name of the restaurant on the marble cladding. Basically the unauthorized canopy and its connected structures remained largely unchanged. 21.Before I deal with the question of liability in this case, there are several matters which I will need to determine first. They are the cause of the collapse, whether it was due to a latent defect and whether the unauthorized canopy formed a part of the common area of Cheong Hing House. I shall deal with these matters in turn. Cause of the collapse 22.As already indicated, the report of the Buildings Department states that the collapse of the unauthorized canopy was caused by :
23.The stated cause of the collapse was accepted and concurred with by all the experts in this case, including Dr Lau, the chartered surveyor called as an expert witness by the 1st defendant. In those circumstances, one would have thought that to be the end of the matter. However, counsel for the 1st defendant has seen fit to submit in final submission the (b), (c) and (d) above were not causes of the collapse, but merely provided the occasion of the collapse. 24.In so submitting, counsel seek reliance on a passage in the judgment of Banque Bruxelles S. A. v Eagle Star (C.A.) [1995] Q.B. 375 at 406 where it was said:
25.That passage can easily be distinguished from the circumstances of the present case in that here, lack of proper structural design, poor workmanship and lack of maintenance are not occasions, unlike the party given by Z, for the collapse of the unauthorized canopy. They constitute reasons why the unauthorized canopy came tumbling down when it did. 26.Once that distinction is made, I have no hesitation in rejecting that submission by defence counsel. I accept all the four causes stated by the Buildings Department in their report as being the cause of the collapse as did all the other experts in this case. Latent defect 27.Firstly, Dr James Lau, the expert called by the 1st defendant, gave evidence that the collapse of the unauthorized canopy was due to a latent defect. It became clear from his evidence that what he meant by latent defect was that since nobody could see the expansion anchor bolts which was used to fix the unauthorized canopy to the authorized canopy because the anchor bolts were necessarily embedded into the concrete of the authorized canopy, and because it was the failure of those anchor bolts which resulted in the canopy collapsing, therefore the defect which laid with the anchor bolts embedded in concrete was a latent defect. 28.That, however, is a blinkered view of the whole situation as it focused only on the failure of the anchor bolts embedded in the concrete as being the cause of the collapse. 29.Indeed such fallacious view taken by Dr Lau was totally exposed when in the very last part of his evidence in court, Dr Lau conceded that upon any reasonable inspection of the unauthorized canopy before its collapse, a reasonable contractor or professional man would have been able to see the rusted trusses which would have, at the very least, alerted him to the fact that the unauthorized canopy may be unsafe or even dangerous - precisely what the plaintiff's expert was saying all along. 30.The submission by defence counsel is no better than the initial view put forward by Dr Lau since it was premised on his earlier submission that the lack of proper structural design, poor workmanship and lack of maintenance were not causes of the collapse. That submission I have already rejected. 31.There can be no question but that if a canopy, and for that matter an unauthorized one, which overhangs a public right of way, is left there close to 20 years after being erected without any proper maintenance (there is no evidence of any maintenance having been carried out for this unauthorized canopy and indeed the evidence of the 1st defendant is very clear that she had never carried out or paid for any maintenance of this canopy because no one has ever asked or told her to) being carried out, then whoever is responsible for the unauthorized canopy cannot be heard to say that it was due to a latent defect, particularly when it is admitted by the defendant's expert that a reasonable inspection would have revealed the unsafe or dangerous state of the structure. 32.The onus is on the defendant to prove latent defect and that they have not succeed in doing in this case. 33.I therefore find from all the evidence and for the reasons given above that the defect which caused the collapse of the unauthorized canopy was not a latent defect, but one which is reasonably discoverable on reasonable examination. Was the unauthorized canopy a common area? 34.It is common ground that the authorized canopy along the external wall of Cheong Hing House is a common area of that building under section 2(a) of the Building Management Ordinance Cap 344. There is also no dispute that the unauthorized canopy was attached to the authorized canopy. On the basis that it was so attached, the plaintiff submits that the unauthorized canopy thereby became a common part of Cheong Hing House as well. 35.I do not accept that submission for this reason. Under the Deed of Mutual Covenant relating to Cheong Hing House, all the owners are under a duty to maintain the common areas of the building including the external wall. Paragraph 4 of the Third Schedule of the Deed of Mutual Covenant prohibits the making of any unauthorised installation to any part of the building in common use. Clearly therefore the common parts of the building for which all the owners are under a duty to maintain can only refer to those parts of the common areas which are not unauthorised structures or unauthorised installations. Put differently, how can it be right that all the owners of the building will be under a duty to maintain an illegal structure erected by one of the owner (or a tenant) but which illegal structure is attached to some common parts of the building. Even if all the other owners are under a duty to enforce the Deed of Mutual Covenant by taking action to have the illegal structure removed, I do not think that they have a duty, without more, to maintain that illegal structure. 36.If such an illegal structure were to become part of the common area simply because it was attached to a common area of the building, then under the Deed of Mutual Covenant all the other owners will be under a duty to maintain it once it is erected. I do not think that is right. 37.For the above reason, I hold that the unauthorised canopy was not a part of the common area of Cheong Hing House. The 1st defendant 38.She is the owner of Shops F, G and H since 1976. From the middle part of 1978 until the time of the collapse, she had let all the three shops as a single unit to successive restaurant operators. Although not frequently, because she was busy involved with her own restaurant business in Wanchai, she did, of her own admission, visit Shops F, G and H after they had been let to the various restaurant operators on occasion. She would therefore have ample opportunity of seeing the existence of the unauthorised canopy even assuming that she may not have known that it was unauthorised. She would also have seen that the unauthorised canopy was being used as part of the restaurant premises with the fluorescent lighting and electric fan mounted underneath it. 39.There is no evidence from her that she made any enquiries from any of her tenants about this canopy over the front entrance of her premises. To that extent I have much reservation accepting her evidence that she did not permit her tenants to erect this unauthorised canopy when its dilapidated condition attest to it having been there for close to 20 years. It is clear the 1st defendant had never objected to the existence of this unauthorised canopy. 40.From the above, it is clear that the 1st defendant either knew or ought to have known not only the existence of the unauthorised canopy and its use by her tenants as part of the leased premises, but also that it was attached to either the external wall or the authorised canopy just above Shops F, G and H. 41.The law in this respect provides that where, during the course of a tenancy, a tenant encroaches upon, or without title to do so, takes possession of, other land, there is a presumption that the land so taken becomes annexed to the demised premises, whether or not it is immediately adjacent to the demised premises and whether or not it belongs to the landlord or to a third person, and on the determination of the tenancy, the land must be given up to the landlord together with the demised premises. (See Halsbury's Laws of England, 4th ed., Vol.27(1), paragraph 165). No evidence has been adduced by the 1st defendant to rebut such presumption. In the circumstances, the unauthorised canopy became part of Shops F, G and H. Undoubtedly therefore, at the determination of each of the tenancy the leased premises including the unauthorised canopy reverted back to the 1st defendant before possession of it was taken over by the new tenant under each new tenancy. 42.This is consistent with the 1st defendant's evidence that she would have paid the Buildings Department demand notes for the cost of the removal of the original canopy as well as the cost for removal of the debris from the collapsed canopy if she had received those demand notes. 43.Under the terms of the lease pertaining between the 1st defendant and her tenant at the time of the collapse, the tenant had undertaken to keep all the interior of the premises in good and proper repair and condition. The 1st defendant, as landlord, had reserved the right to enter and view the state of repair of the leased premises and under Clause 5(k) thereof to:
44.This reservation of right by the 1st defendant to effect repairs was itself sufficient to create a duty to passers-by who might be injured by a collapse caused by a failure to maintain the unauthorised canopy and to keep it in good repair. 45.Notwithstanding this duty to repair, the 1st defendant's evidence was that she had during all these years never been asked or told by anyone including her tenants or other owners to maintain or pay for the maintenance of this canopy. As a result she had not done anything to maintain it but had left it to others. 46.For the reasons above, I find that the 1st defendant was under a duty to the deceased to maintain the unauthorised canopy, both as an owner and as a landlord and she was in breach of that duty by her failure to maintain the unauthorised canopy which was one of the causes of its collapse. 47.I also find that the unauthorised canopy, in its unsafe or dangerous state and overhanging a public right of way, was a nuisance and the 1st defendant is also liable to the estate of the deceased in that respect. Res ipsa loquitur 48.The plaintiff has also put its case on the basis of res ipsa loquitur. However where the cause of the accident is known, the principle of res ipsa loquitur will not apply and liability will be decided on the known cause of the accident. Hearsay Notice 49.Before I turn to deal with the question on quantum, I should mention that there was a dispute between the parties as to a number of documents which the plaintiff had sought to adduce into evidence by way of Hearsay Notice filed on the 2nd day of the trial. 50.Quite apart from the Hearsay Notice being filed very late in the day, it also contained a number of documents which in my view were quite irrelevant and unnecessary to decide the issue in this case, or else related only to a collateral issue. 51.Ultimately, there were only nine items (out of some 70 items) contained in the Hearsay Notice which were disputed as to admissibility between the parties. 52.As it turned out I did not have to rely upon any of these nine disputed items in arriving at my decision on liability. Had it been necessary to do so I would have ruled against the plaintiff upon the question of admissibility of those nine disputed items. They were either irrelevant or related to a collateral issue. 53.I can do no better than to repeat what has been said time and again by these courts that it is for the legal advisers of the parties to be selective in putting only what is relevant before the court by way of evidence, instead of overburdening the court with numerous unnecessary or irrelevant documents some of which relate only to a collateral issue in the case. Quantum 54.The deceased was born in 1957 and came to Hong Kong from Mainland China in about 1978. After coming to Hong Kong he had worked at construction sites until his death. 55.The deceased married in China in December 1984. His wife, born in the same year but several months older than the deceased, remained in China while the deceased lived and worked in Hong Kong. She gave birth to their eldest daughter in 1987 in China and a second daughter was born to them in 1988 also in China. The wife visited Hong Kong in 1993 and while she was in Hong Kong, gave birth to their third daughter here. She again visited Hong Kong in 1994 and again whilst in Hong Kong, gave birth to their fourth daughter here. After the fourth daughter was born, the wife did not return to China but stayed on in Hong Kong, presumably illegally. The fifth child a son was born to them in 1995 in Hong Kong. The two elder daughters remained living in China up till the death of the deceased while the three younger children stayed in Hong Kong at all times. 56.In Hong Kong, the deceased and his wife and their three younger children stayed with the deceased's brother, Yeung Kwong at his home in a public housing unit in Wan Tau Tang Estate in Taipo. At the time of his death from the accident, the deceased was 37 years old. 57.Application had been made by the deceased for the two elder daughters to join the rest of the family in Hong Kong and for the wife to be a legal resident here as early as 1991 but up to the time of the deceased death, permission had not been granted for the two elder children to come to Hong Kong on a permanent basis. Permission was only granted shortly after the death of the deceased. 58.In June 1996, after the two elder children had come to Hong Kong as permanent residents, the widow and the five children of the deceased were allocated their own public housing unit in Tai Po. The widow is and has always been a full time housewife and all the children are now studying. 59.Apart from supporting his immediate family, the deceased also remitted a monthly sum of $600 to his father in China. The father of the deceased is now 83 years old. 60.There is a certificate from the pre-accident employers, Kei Yip Engineering Co, to the effect that the deceased was paid $550 per day at the time of the accident. This is higher than the average daily wage for casual labourers on construction site at the material time which appears from the statistics to be $460 per day. However, there is evidence which I accept that the deceased was paid a higher wage paid than the normal because of his experience as a mason which he acquired over the years working on construction sites. 61.From the statistics produced in evidence, the most update average wage for a construction site worker in 2001 is shown to be $628 per day. Accepting the suggestion put by counsel for the plaintiff that by the same reason that the deceased was paid a higher than average wage at the time of the accident, so too he would have commanded a slightly higher wage if he had been working now, I believe the suggested notional daily wage for the deceased at the time of trial being $720 per day to be about right. 62.I therefore find the median monthly earnings for pre trial calculations to be :
63.As for the multiplier, the deceased was 37 when he died. His widow was, at the time of his death also 37. He had five children whose ages ranged from two months to eight years when he died. 64.He would probably have a working life of at least another 23 years up to 60 years doing manual work, but keeping in mind that the deceased had a young family of five children, it is likely he would work up to 65. I shall use a multiplier of 15.
65.70 months have passed since the accident. There is no dispute that the deceased spent 75% of his income to support his family. The pre-trial loss of dependency therefore comes to 75% of $15,875 x 70 months. This gives to $833,437. 66.The plaintiff further claims for loss of dependency to the deceased father in Mainland China to whom he gives $600 a month. The dispute between the parties on this seems to be that the plaintiff says this $600 is separate and distinct from those moneys used to support the family by the deceased whereas the defendant says that the $600 is included in the 75% used for calculating the dependency. 67.It is clear from the widow's evidence, in particular paragraphs 10 and 11 of her witness statement that the $600 contribution to the father of the deceased was taken into account in calculating the family expenses. No other reasons have been given as to why the $600 should not be part of the total dependency. Accordingly I do not propose to make a separate award of dependency for the father of the deceased but that it will be included in the total dependency of 75% of the deceased's income. Loss of service 68.The plaintiff claims loss of service by the deceased (as a handyman around the house and in helping generally with the children and with work about the house) at $500 per month for the whole of the pre-trial period. The defendant, whilst not disputing this claim in principle, says that this is general damages and should be awarded in a lump sum but not calculated on a multiplier multiplicand basis. On the lump sum basis the defendant offers $60,000 for this claim. 69.I accept the defendant's submission that loss of gratuitous service is general in nature and a lump sum should be awarded. 70.I shall award a lump sum of $60,000 under this head. Post-trial dependency 71.The notional earnings at the time of trial is based on a daily wage of $720. This gives a monthly earnings of $18,000 based on a 25 working days per month. Using 15 as the multiplier, the amount of claim under this head comes to :
72.For the same reason already given, there will be no separate award made for the father. Bereavement 73.The statutory amount of $70,000 will be awarded. Funeral Expenses 74.This is claimed at $74,397 by the plaintiff. It is disputed by the defendant as being excessive when compared with the deceased station in life. The defendant also challenges some of the receipts produced as being apparently unconnected with the funeral. 75.Borrowing the words of Huggins J when giving judgment in the case of Wong Kam Ying v Man Chi Tai [1967] HKLR 201 at 207, I agree that funeral expenses is "no easy matter" and that "where custom and good taste are concerned the court must take a generous view". 76.I am satisfied that the funeral ceremony performed in this case in respect of the deceased was performed in accordance with the custom and religious beliefs of his family. The amount claimed, supported by receipts in so far as it can be, is not unreasonably excessive and was probably expended by the family necessarily in conforming to such custom and religious beliefs. Moreover, at the time of the funeral when such expenses were incurred, probably the furthest thing from the minds of the family members would be legal proceedings to recover the funeral expenses. 77.As for the point taken by the defendant that some of the receipts show items such as the receipts for bunk bed and pillows appears to be unconnected with the funeral, these receipts were produced by the plaintiff pursuant to the claim for funeral expenses and had been disclosed to the defendant well before the trial. However, no questions were asked in cross examination or any attempt made to challenge their connection with the funeral until this point was taken in final submission. I think very little of this point. 78.For the above reasons, the funeral expenses claimed will be allowed in full in the sum of $74,397. Loss of accumulation of wealth 79.There is a claim for loss of accumulation of wealth in the amount of $350,000. 80.This claim is disputed by the defendant in its entirety. The defendant says that with a family of five children (two in China and three younger ones in Hong Kong) the deceased would not have been able to save any money such that there should be no award under this head of claim. 81.The evidence from the deceased's savings bank account passbook shows quite clearly that the deceased had a bank balance of $74,911 in August 1991 and a final balance of $63,107 in November 1995 just before he met with the accident. In between the time of those two balances, the amount of his bank balance fluctuated. 82.In the light of that evidence, I am unable to understand the defendant's submission as to how it could be said that the deceased was not able to save any money. He clearly did have savings although, quite understandably, with a family of five children and the income that he was making, the amount of savings would not have been a large one. 83.This paints the picture of a responsible husband and father who worked to support his family as well as his father. It also points to a man sufficiently frugal to be able to save up a little from his meagre income despite the large dependency on him. 84.Loss of accumulation of wealth is determined not by what the deceased would have saved up at the time of his accident or even at the time of the trial, but what would have been his savings at the time of his natural death. On the assumption that the deceased would have lived up to at least 70 years in his natural life, that would be some 33 years from the time of the accident. By that time his parents would in all probabilities have passed away and his children would be all grown up and no longer dependent on him. 85.Given the indication of the kind of man the deceased was as detailed above, I am quite satisfied that there would have been some accumulated savings by the deceased had he not met with this accident. 86.As for the amount, I take the view that if the deceased was able to save up in the region of $60,000 to $70,000 when supporting a family of five children, a wife and a father, there would be little reason to think that he cannot save up $350,000 at the end of his natural life. 87.I would accordingly allow the amount of $350,000 claimed for under this head of claim. Interests 88.Interests will be awarded on the sum for bereavement at suitors' fund rate from the date of death (see Kwan Lai Kuen v National Insurance Co Ltd [1998] 1 HKC 98). 89.On pre-trial loss of dependency and funeral expenses, the rate of interests will be at half judgment rate from the date of the accident. Summary of quantum
90.The total figure assessed for quantum including interests comes to $3,185,911. Order 91.There will be judgment for the plaintiff in the sum of $3,185,911. 92.There will also be an order nisi that the defendant do pay the plaintiff the costs of the action to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations. Cost re plaintiff's application to stay against 7th defendant 93.The plaintiff applied on 22 June 2001, two weeks before the start of this trial to stay the proceedings against the 7th defendant pending the outcome of the case against the 1st defendant. That application was fraught with difficulties from the outset. 94.The 1st defendant was involved in the stay application because she had issued a contribution notice against the 7th defendant in this case. After some initial submission the application was adjourned to 28 June. One of the reason for the adjournment was because the 1st defendant did not agree to withdraw her contribution notice against the 7th defendant on 22 June. 95.Ultimately at the adjourned hearing the plaintiff discontinued its claim against the 7th defendant and the 1st defendant also withdrew its contribution against the 7th defendant. There was no order as to costs between the plaintiff and the 7th defendant and also no order as to costs between the 1st and 7th defendants upon the contribution notice. All these orders were made by consent. 96.In so far as costs arising between the plaintiff and the 1st defendant in respect of the stay application, while it is true that the plaintiff was not successful on their application to stay at the end of the day, it is also true that the 1st defendant had to concede by withdrawing its contribution notice against the 7th defendant - something which the 1st defendant had resisted at the first hearing. To that extent the 1st defendant cannot complain. 97.In the circumstances, the fairest order in my view as to costs between the plaintiff and the 1st defendant in respect of the stay application is no order as to costs between them. That is the order which I make.
Representation: Mr M. Bharwaney, instructed by Director of Legal Aid, for the Plaintiffs Mr Andy Hung, instructed by Messrs Raymond Lo & Co, for the 1st Defendant |
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