Kong Chun Mui v. Chau Kwai Fong and Another

HCA007221/1987

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BETWEEN

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Coram: Master Woolley in Court

Dates of Hearing: 21 June 1989 and 24 October 1989

Date of Delivery: 14 November 1989

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ASSESSMENT OF DAMAGES

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1. The Plaintiff in these proceedings, Madam Kong Chun Mui, is the widow of Cho Po deceased, who died on 12th April 1986 in the course of his employment with the 1st Defendant when he was struck by a cap on the end of a gas pipeline being blown off by pressure in the pipe.

2. Proceedings were commenced against these Defendants on 16th November 1987 and, by consent, judgment was entered against both Defendants on 2nd August 1988 with damages to be assessed.

3. At the commencement of this hearing I was informed by counsel that the parties had agreed that an appropriate multiplier to he adopted in this case is 14 from the date of accident, the deceased being then aged 31.

4. The major items thus remaining in dispute were the amount of the deceased's earnings at the date of death, his likely earnings now, and the degree of dependency of his family on him.

5. In addition to oral evidence from the Plaintiff and a colleague of the deceased, Mr. Li Chun Yuk, hearsay notices in respect of a statement by a Mr. Lam Kam Kwan, another former colleague of the deceased, and a number of wade surveys by the Census and Statistics Department had been served on behalf of the Plaintiff.

6. Although a counter-notice in respect of Mr. Lam's statement was served by the Defendants, after hearing evidence I allowed the statement to be adduced in evidence.

7. I am urged on behalf of the Plaintiff to accept that the deceased was earning an average daily wage of $192.10 at the date of his death, and working an average of 28 days per month.

8. The evidence which the Plaintiff's counsel submits supports these figures is provided by Mr. Li, the deceased's colleague, the Plaintiff herself and statistics from the Census and Statistics Department in respect of average wages of workers engaged in Government Building and Construction projects.

9. I am told that the deceased was engaged in what is known as "saam hong", which means that he was a construction worker specializing in three trades, namely concreting, plastering and carpentry. With Mr. Li he would obtain contracts, or presumably sub-contracts, on construction projects, principally road repair work, and whatever they earned, after paying any casual workers of their own, would be divided between them equally.

10. When contracts were not available the deceased would obtain work on a casual basis until he could obtain another contract.

11. Mr. Li's evidence was that he and the deceased earned on average between $180 to $220 per day. On casual work they could earn $180 to $200 a day, and on contract up to $220 per day.

12. They would be employed a casual work between one fifth to one third of their time, and the rest on "saam hong" contract work.

13. Although Mr. Li was clearly an honest witness, giving evidence to the best of his recollection, I am bound to take his figures as, at best, vague averages, in the absence of any records of his own earnings at the time, particularly of their contract work where the sum earned would be such profit, as they could obtain from the contract, rather than a daily rate. However, I do accept, mainly as a matter, of common sense, that they would earn more on contract work than as casual labourers.

14. The Plaintiff herself could shed but little light on the matter of the deceased' s precise earnings. She did not appear to know what he earned, and the family had a simple accounting system which involved their income, including the Plaintiff's own earnings of $500 to $600, being placed in a drawer and all expenses of the family being taken from it as they arose during the month. These were on average between $4,000 and $5,000 a month, including the deceased's own expenses, and there were sufficient earnings left over to allow several trips to China each year to visit relatives with presents.

15. On behalf of the Defendants, Madam Kong was cross-examined at length with regard to information that she had given to the Social Welfare Department both as to her husband's earnings, and as to a child living with them as on "adopted" son at the time of the deceased's death and for a period following.

16. It seems clear that Madam Kong gave to the Social Welfare Department, the Labour Department, and the Legal Aid Department, or possibly did not dispute, a figure of $170 as the deceased's daily income, and it was this figure which was used as the basis of calculation of the Employees' Compensation award. It is equally clear that Madam Kong was less than frank with the Social Welfare Department about the child Tso Chit-pui who, although not her natural son, was recorded as such by Social Welfare, and for whom she continued to receive social welfare payments for a period after he had been returned to his own parents.

17. While her actions in so doing were unquestionably foolish and misguided, I am not prepared as a result to brand her as a dishonest woman and an unreliable witness. I take into account in so doing the fact that these events were shortly after the tragic death of her husband, in a difficult period both emotionally and financially, when she must have been under severe stress. Having also seen her giving evidence, I am satisfied that she was giving honest evidence to the best of her recollection.

18. I therefore accept that the Plaintiff did not know precisely what the deceased earned, and the figure of $170 per day was either a guess, or based on what he had told her some years before the accident.

19. I am thus driven to seek guidance from the Government statistics.

20. These, in April 1986, gave the average daily wage of "Concretors, Bricklayers and Drainlayers" as $192.10 per day, and labourers as $133.90 per day.

21. The Plaintiff bases her claim on the former figure, whereas the Defendants maintain that the figure of $170 is an accurate estimate, falling as it does somewhere between the two.

22. I am more inclined to the latter view. Bearing in mind the fact that a proportion of the deceased's work was casual labour, when he could not always obtain top rates - indeed, at the time of his death he was only on a rate of $140 per day - and the uncertainties of the profits made on contract work, I believe the true figure would not be as high as that given for skilled bricklayers, concretors and drainlayers on a regular basis. However, neither do I think that $170 is correct.

23. On the evidence, I place the deceased's earnings rather nearer that of the skilled bricklayers etc., and I propose to take the figure of $180 as his average earnings per day.

24. As to the number of days in his average working month, there was ample evidence that the deceased was a hard-working man who rarely took days off, and I am urged on behalf of the Plaintiff to find that the deceased worked an average month of 28 days.

25. In the light of the evidence that he only rested on a few public holidays, and those days when he was prevented by the weather from working, I do not consider this unreasonable and I accept 28 days as his average working month.

26. I accordingly find that, at the date of his death, the deceased's average earnings were $5,040 per month.

27. I propose to use a similar calculation to determine the likely earnings of the deceased at the date of assessment.

28. The figures for average earnings from the Government statistics for August 1989, the latest date available, give figures of $254.40 per day, and $361.00 per day, for labourers, and bricklayers etc. respectively. On the basis of these I assess the present likely earnings at $340.00 per day. In doing so I take into account any possible inflation from August to October. The current monthly earnings would accordingly be $9520.00 ($340.00 x 28) and the median therefore $7,2.80.00 ($5,040 + $9,520.00 ?2).

29. The Plaintiff gave evidence, which I accent, of monthly family expenses at the date of the accident of $2,656.00 referable to such shared items as food, rent, utility bills and clothing. In addition to this there were medical bills, and taking these into account, I find on a balance of probabilities that the total expenses would have been $3,000 per month.

30. Although it has been suggested on behalf of the Defendants that this figure should be divided by 4?to arrive at the deceased's share, on the basis of each adult counting one and each of the five children in the household ?  I do not consider that this would meet the justice of the situation. I take into account that the deceased consumed less of the family food, as he was out for most of the day, and that the child Tso Chit-pui was effectively one of the family and also shared the benefits of the household expenses. I therefore consider that the total should be divided by 7 to arrive at the deceased's share of $428.57 which I round up to $430.00.

31. I also accept the evidence of the deceased's own expenses of $600.00 per month.

32. The free balance at the date of death is accordingly $4,010.00 ($5.040 - $430 - $600) or 79.56%, which I round down to 79.5%.

33. The multiplier has been agreed by the parties at 14 from the date of accident, giving 42 months from accident to hearing and 126 months post-trial.

34. I accordingly assess the pre-trial loss at $243,079.20 ($7,280.00 x 79.5% x 42), and post-trial loss at $953,618.40 ($9,520.00 x 79.5% x 126). For loss of expectation of life I award the sum of $20,000.00, which was not disputed by either party.

Funeral expenses

35. In her statement of claim the Plaintiff claimed $20,800.00 in respect of funeral expenses; she apparently told the Social Welfare Department that these were $15,000.00 on one occasion and $24,000.00 on another, and in evidence she claimed that she had spent $30,000.00.

36. No receipts were produced to support these figures, which I can only assume to be a result of the Plaintiff's poor recollection.

37. In the circumstances I can only award what I consider to be a reasonable sum, and that is the original sun claimed in the statement of claim, namely $20,800.00.

38. The Plaintiff concedes that, from the sums awarded, should be deducted the sum of $299,000.00 paid by the Defendants by way of Employees' Compensation, and the sum of $44,000.00 already paid to the Plaintiff by the Defendants.

Summary

39. I need hardly add that this is all under the claim on behalf of the estate of the deceased under the Law Amendment and Reform (Consolidation) Ordinance, Can. 23, it being agreed by the parties that the claim under the Fatal Accidents Ordinance merges with this.

Interest

40. Mrs. Kaplan on behalf of the Defendants submitted that no interest should be awarded to the Plaintiff on the pre-trial loss and the funeral expenses as the Defendants had been making payments to her from the date of the accident, and she had received the Employees' Compensation from December 1986. She had thus not been kept out of her money, for which an award of interest is intended to compensate.

41. I think there is some merit in this argument and I accordingly make no order in respect of interest for these.

42. With regard to the award for loss of expectation of life, there will be interest at 2% from date of writ to the date hereof.

43. There will be an order nisi for costs to the Plaintiff with a certificate for counsel. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. S. Chiu instructed by M/s. Munro & Claypole for the Plaintiff.

Mrs. Kaplan instructed by M/s. Cheung Tong & Rosa for the Defendants.