Lee Kai Cheung v. Yim Tat Kuen

HCA001374/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Master Barrington-Jones in Chambers

Date: 12 August 1983

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ASSESSMENT OF DAMAGES

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1. On the 11th November, 1980 the deceased, a 16 year old youth was killed when a goods vehicle driven by the Defendant collided with him whilst he was walking on the pavement on Castle Peak Road.

2. At the time of his death it is said that the deceased enjoyed good health and was working as a busboy at the Chan Kee Eating House earning $1,350 per month of which sum he contributed $700 towards the maintenance of his family comprising his father and sister with whom he lived.

3. In his address Mr. Lai submitted that regard should be had to the dependency of the father of the deceased for a futher three years under FAO. As I understood him, Mr. Lai based his submission on the judgment of the Chief Justice in Yeung Wing, v VSL Engineers (Hong Kong) Ltd and others - (High Court Action No. 3072 of 1979) which was later before the Court of Appeal (Civil Appeal No. 27 of 1981) when that Court dismissed the appeal but allowed the cross-appeal holding that as both damages for loss of expectation of life and loss of dependency would be payable to the deceased in respect of lost years if he had lived there was no reason in logic to merge them in the case of a claim following his death.

4. However the question of the merger of  FAO and LARCO awards, and the calculation of damages for the lost years was later finally resolved by the Chief Justice in the Personal Representatives of the Estate of WONG Sai-chuen deceased and others (1981 No. 133) (Civil) and it is, I am satisfied, on the basis of this latter judgment that assessments should now be formulated.

5. I take particular note of what the Chief Justice had to say at pages 14 & 15 of the judgment in that case and where he referred to Davies and another v Powell Duffryn Associated Collieries Ltd 1942 AC 601 where Lord MacMillan stated the general principle in the following terms:-

"........the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of damages."

The Chief Justice went on to say:- (at page 14)

6. The foregoing now makes the position quite clear, and it is noteworthy that Mr. Justice Mayo in giving judgment in a subsequent case Yeung Yuk Sim alias Yeung Yee Nui, the Administratrix and Yeung Fu Wah etc. (1980 No. 5150) on the 28th May 1983 states (after referring to page 14 of the Chief Justice's judgement):-

"It appears probable that in almost every case involving the lost years principle the amount awarded under LARCO will exceed the amount payable under FAO which will (be)come submerged within it. There may however be some cases where it will be necessary to consider claims under FAO if the dependants are different to the beneficiaries of the estate of the deceased. No problem arises in the present case. The deceased died intestate and his only dependants were his widowland his children who will of course inherit the deceased's estate in accordance with the provisions contained in the Intestate Estates Ordinance Cap. 73. There is therefore no award under FAO in this case."

7. Any doubts about not making an FAO award in this case are resolved by the judgment of the Court of Appeal in Kowloon Motor Bus Co (1933) Ltd/Cheung Chi Shing and Ng Kung (Administrator of the Estate of NG Yuk Man, deceased) 1983 No. 7 (Civil) where Barker J. A., said (at p.3) (when dealing with LARCO damages):-

8. Here the circumstances are somewhat similar to the aforementioned cases in that the deceased died intestate and his only dependants are his father and younger sister (his elder brother being the administrator of the deceased's estate); so that I have no hesitation in adopting Mr. Justice Mayo's approach as supported by the dictum of Barker, J. A., in the Kowloon Motor Bus Co (1933) etc., (supra) and take note that the LARCO benefits hero will undoubtedly exceed any that might have been given under FAO. There is therefore no award under FAO in this case.

LARCO

(a)    Loss of earnings during the "lost years"

9. It is recited inter alia in the particulars of the Statement of Claim that:-

10. But it transpired from the evidence of the deceased's employer that the deceased was first employed as a busboy at the Chan Kee Eating House on the 1st November, 1980, and that he died on the 11th November; so that he had only been in that employment for some ten days at the time of his death. Yet it is stated in the particulars that the deceased gave his family $700 per month. It seems to me that unless he was paid in advance (which would surely be most unlikely) and noting that there was no evidence before me to suggest that the deceased had entered any other employment before joining the staff of the Chan Kee Eating House; so that I believe the deceased had not in fact given his family any money before his death. I can only assume that all he might have done was to have expressed his intention of giving his family $700 per month out of his salary during his employment at the Chan Kee Eating House. The deceased's employer set out how the deceased's employment might have progressed if he had lived, as follows:-

11. Whilst that might have been the deceased's progression I must keep in mind that he was a young lad of 16 years and had only been employed for same ten days - barely long enough for his employer to assess his aptitude and suitability even as a busboy in the restaurant. So that in a situation like this I believe I am assisted by the case of Kowloon Motor Bus Co (1933) Ltd/Cheung Chi Shing and Ng Kung (Administrator of the Estate of Ng Yuk Man, deceased) (Court of Appeal) (1983 No. 9) (Civil) where Barker, J. A., said (at p.5):-

"...... It behoves the judge to take into account in the assessment of the LARCO damages any changes which may occur in the future and to adjust such damages up or down. With this statement of principle we would not disagree. A judge ought not to assume that the financial position of the deceased crystallised at the date of his death. He should, in assessing LARCO damages, take into account any changes which it is reasonable to infer would take place in the future. For example, if the deceased was engaged to be married, it would be reasonable to assume that he would marry and, probably, have children. But a judge in this sort of case may well, and we think properly, say to himself "I am aware that I have to look to the future, but having regard to all the imponderables and uncertainties, I think that the only satisfactory course is to assess the damages or the basis of the position as at the date of death ........."

12. As I see it, this case is exactly on all fours with the situation envisaged by Barker J. A. I say that because of the deceased's age, his working life of ten days; those factors taken together with his possible advancement in his work as well as the possibility of marriage become imponderables and uncertainties which have led me to find that the only satisfactory course here is to assess the damages on the basis of the position as at the date of death.

13. I am quite satisfied that the deceased's position immediately prior to death was that he had been employed on the 1st November, 1980 at a salary of $1,360. It is now well settled on the authority of the Estate of Wong Sai-chuen p. 10 (supra) by which the adjudicator in assessing the free balance (i.e. that part of the deceased's earnings which would have passed to his estate) should:

14. At the time of the deceased's death the household comprised his father, elder brother, younger sister and himself. The deceased's brother in evidence said that the family spent about $1,000 on food and that the deceased took only one meal per day at home. Taking account of the cost of housing, there was evidence that the rent for the family hone was $100 per month. Taking careful account of the general standards of reasonable expectation of his background in the light of the deceased's status and income, I believe that the appropriate figure here (under (b) supra) is $510.

15. I accept that there is the real possibility of the deceased marrying (perhaps on or after his 26th year) that taken with the fact that the deceased's father is at a relatively advanced age (72 in 1983) and the likelihood of his younger sister (now aged 15) leaving the household (perhaps on marriage) in five years time, present imponderables that make it extremely difficult to foresee what might have been the deceased's financial circumstances and commitments in the lost years. I have come to the conclusion that the deceased would probably have continued to make a reasonable contribution to the family (whatever its composition) during the lost years; and that his personal expenses would probably have remained about the same. On that basis there is a free balance (i.e. that part of the deceased's earnings which would have passed to his estate) of $850. Master Emerson found in Wong Kwan, the lawful administrator of the estate of Wong Sing Kau deceased/Cheung Fung, the lawful administratrix to the estate of Fung Chun, deceased (HCA 10239 of 1982) that since 1980 there has been a 30% inflation. On that basis multiplying $850 x 30/100 = $255 which would have been the increase in wages (through inflation) of the deceased if he had lived. Taking the free balance of $850 + $255 produces a multiplicand of $1,105.

16. Mr Lai proposed that the multiplier in this case should be 15, and I agree with him.

17. Accordingly the award under this head will be ($1,105 x 12 x 15) = $198,900.

(b)    Loss of Expectation of Life                      

18. Mr Lai said that the conventional sum of $15,000 was appropriate in this case and I agree, and such sum is accordingly awarded.

(c)    Special Damages

19. On the subject of interest the Court of Appeal ruled on the 24th March, 1983 in Wong Yuk Chau and Another v Tang Suk Yee 1983 No. 15 (Civil) that the guideline to be applied in Hong Kong is that general damages for pain, suffering, loss of amenities and loss of expectation of life should continue to be at the full economic rate. However, in a judgment delivered on the 19th July, 1983 in Ng Chai Man/The Kowloon Motor Bus Co (1933) Ltd. v Leung Ngan 1983 No. 55 (Civil) the Court of Appeal revised the guideline and ordered that the rate of interest to be awarded in personal injury actions on damages for non-economic loss should be 2%, subject to the discretion emphasised in Wong Yuk Chau (supra). Whilst the Court of Appeal did not refer to rates of interest in fatal accident cases in Ng Chai Man, I believe that the Court's latest ruling must by analogy extend to damages for non-economic loss in such cases.                       

20. It therefore follows that there will be interest on the award for loss of expectation of life at the rate of 2% per annum from date of service of the writ until judgment.                 

21. There will be interest at 5.5% per annum in respect of the pre-trial portion of the "lost years" viz $30,681; and in respect of the remaining Special Damages from the date of accident until judgment.                        

22. There will be costs to the Plaintiff, to be taxed, if not agreed.

Representation:

Mr. E. F. K. Lai (Messrs Lau & Co) for the Plaintiff

No appearance by the Defendant