Fung Yu Lam v. Pang Sing Kung and Another

HCA000186/1979

Head note-Claim by administrator of estate of his deceased son- deceased a seventeen years, old schoolboy in part-time employment at time of death -assessment of damages under LARCO & FAO - assessment under FAO upon basis of his potential earning capacity & support he might have been expected to give his parents - multipler of 16 applied to assessment under FAO - interlocking effect of the 2awards considered.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Power, J.

Date of Judgment: 21 October 1981

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JUDGMENT

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1. In this matter the plaintiff brought an action against the defendants in his capacity as administrator of the estate of his deceased son, FUNG Kwong-hing, Dominic, who died on the 26th August 1977 3 days after having been injured in a traffic accident while riding as a pillion passenger on a motorcycle which was owned by the 1st defendant and was being driven by the 2nd defendant. There is no need for me to canvass the circumstances of the collision as the 2nd defendant admitted liability in full and the plaintiff then discontinued his claim against the 1st defendant. The plaintiff sought damages under the Fatal Accidents Ordinance Cap. 22 (F.A.O.) on behalf of 3 dependants, namely himself, his wife and his mother-in-law. A claim was also brought under the Law Amendment & Reform Consolidation Ordinance (L.A.R.C.O.) by the estate claiming damages for loss of expectation of life and for loss and damage suffered by the estate.

2. The father of the deceased was the first witness called. He said that his deceased son had lived with him and his wife at the time of his death. The occupants of the family residence at the present time, according to this witness, were himself and his wife, a son FUNG Chi-hing, aged 26, his wife and infant child, a daughter FUNG Moy-ying, aged about 22, and, at times. a mother-in-law, aged nearly 80, who also, at times, resides in her own residence which is a stone hut. There was no specific evidence as to the persons residing in the family residence at the time of the death of the deceased. However I consider it reasonable to proceed upon the basis that the residents were the same with the exception of the wife and child of FUNG Moy-ying who was then still single.

3. The witness said that his son who was 17 at the time of his death had finished Middle IV and was, after the annual holidays which were then current, intending to proceed into Middle V. He said that his son attended half day school and also did decoration work in domestic premises. He said that this "decoration" work consisted mostly of painting and carpentry. He gave no evidence as to the amount his son earned each month from this work but said that he contributed $300, or a bit more, towards the family finances and that he paid for his own school fees and for all of his own meals except for 8 to 10 meals which he took each month with the family. He said that his son was inclined to continue work as a decorator when he finished his education which would be after he had completed Middle V, i.e. in one year's time. The witness said that he was 58 years of age and his wife was 49. He would therefore have been 54 and his wife would have been 45 at the time of the accident. He said that he earned $1,900 per month. He said that he expected to retire at the age of 63 or 64. He said that his eldest son contributed $300 per month towards the family finances.

4. He described the family flat which he said was about 400 square feet and contained 2 bedrooms and one sitting room. He said that his elder son and his family occupy one bedroom and his wife and daughter occupy the other one and that he occupies the sitting room. He said that had the deceased lived and eventually married then either he or his brother would have had to look for accommodation elsewhere. He said that his son was a diligent student and that he did not smoke or drink and that he expected that, when his son commenced work full time, he would contribute two-thirds of his salary towards the family expenses. He did not put forward any factual basis to support his generous assessment of his son's expected contribution. I consider it proper when examining this assessment to bear in mind that his surviving son contributes only $300 per month to the family finances. It is true that this son is married and has one child, nonetheless I am satisfied that the witness was unjustifiably optimistic in his assessment of the support he would have received from the deceased.

5. He said that when he retires at the age of 63 or 64 he would be dependent entirely upon his small savings and that he would then expect his two sons to increase their assistance to him and his wife.

6. He was cross-examined with regard to his mother-in-law and he repeated that sometimes she stayed in her hut and sometimes she stayed at the family residence and he said that she lived on her old age pension with occasional assistance from him. Although a dependency claim was made on behalf of the mother-in-law, I was not addressed upon the basis that any dependency had been established in her. This was understandable for, as the evidence stands, there is nothing which would allow me to make any such finding.

7. The next witness was Mr. LIU Man-kong who said that he was a carpenter employed by the Jockey Club and that prior to joining the Jockey Club in about 1977, he had worked as a decoration worker. He said that in that work he had earned $80 a day when working for some one else but had been able to earn about $120 a day if he undertook the work directly as a sub-contractor. He said that he was now paid $3,100 per month by the Jockey Club and that he got two meals a day and double pay. He said that at the present time an adult person employed in decoration work would, if he was a casual worker, be paid $140 a day and would be able to get work for about 26 days per month, but that if he was a permanent employee he would be paid about $2,400 per month. He said that a person would be paid adult rates in this field when he was about 19. This evidence was not really contested however he agreed in cross-examination that by virtue of his certificate from the Kwong Tong Technical Centre he could be regarded as being better qualified than a person who learnt the trade on the street.

8. The next witness Mr. FUNG Chi-ling, the elder brother of the deceased, said that he was now 26 years of age and that he was earning $3,000 per month as an air-conditioning technician. He said that he was able to save $300 per month. However he later said, in cross-examination, that because of the recent pay increases, he was able to save something in the vicinity of $600-$700 per month. He said that he considered his brother if he was earning $2,400 per month and was a bachelor would be in a position to save at least $300 per month. He said that his wife was about to have another child and that he did not think there would be sufficient room for him to remain living in his father's residence thereafter.

9. The evidence of the above witnesses were not really contested and I am satisfied from that evidence that the deceased was a diligent worker and dutiful son. I accept that he would have left school at the completion of Middle V and that the likelihood is that he would then have gone into the decoration business. It seems to me that he would have taken about 2 years to bring himself up to full earning capacity and that he would by the time he was 20, i.e. in 1980, have been in a position to command a full salary in the decoration field. From the evidence of Mr. Liu I am satisfied that this salary would have been in excess of $2,000 per month. Indeed, if he had been Prepared to work on a casual basis, his earnings would have been higher. I accept that as a permanent worker earning $2,000 per month he would also be entitled to a month's extra pay each year. I consider that he would have been prepared to contribute not less than $1,000 Res manth to the family fund which figure would, of course, have had to cover his own upkeep. I am satisfied that $250 is the proper figure to fix as the amount of support he would have given his father and $200 is the proper figure to fix as the amount he would have given his mother. I appreciate that the amounts would have been less in the years between 1977 and 1980. However, I consider that there are the proper overall figures to apply to the years during which he would have been supporting his parents. When fixing these figures I bear in mind both that he might well have increased his support when his father retired from work at the age of 63, and that any support he was giving would probably have been adjusted downward at the time of his marriage which would probably have taken place when he was in his mid twenties. Bearing in mind that the father was 54 when his son died and his wife was 45 I fix the figure of year's purchase to be applied to the annual amount of support the deceased would have paid to his father at 10 and the figure to be applied as regards his mother at 16. The amount which the father will be entitled to recover will therefore be $30,000 (10 x 12 x $250). The amount the mother is entitled to recover will be $38,400 (16 x 12 x $200).

10. I must now assess the figure that would fall to the estate on account of loss of expectation of life and loss of earnings in the lost years. I am satisfied that, over and above his upkeep expenses and the provision he made for his dependents, the deceased would in the years when he was supporting his father and mother, have been ablet to save an amount of $300 a month from his salary. His brother stated that he expected he would at least to be able to save that and I consider this is a fairly modest figure to fix for such saving. Counsel agree that the multiplier, given the age of the deceased should be 16, and this therefore gives a total figure of $57,600. When he was no longer supporting his father his "savings" would be increased by the amount of $250 per month. The amount, therefore, of $18,000 ($250 x 12 x 6) must also be included in the lost year's total. To the above figures must be added the figure of $15,000 which I award for loss of expectation of life which gives a total amount to the estate of $90,600. The estate is also entitled to recover the sum of $1,500 for funeral expenses. The dependents are, of course, entitled in a separate award under the F.A.O. to the amount assessed with regard to their dependency as this amount has not been taken into account, as it properly could be, in the assessment of the amount to be awarded for the lost years.

11. The 2nd defendant is ordered to pay plaintiff damages in sum of $92,100 under L.A.R.C.O. and $68,400 under F.A.O. I have deliberately kept the awards separate to ensurse that there is no possibility that estate duty will be levied on the F.A.O. award. Interest is to be paid at rate of 12% from date of issue of writ.

Representation:

Mr. Barretto (D.L.A.) for Plaintiff

Mr. B. Chain (J.T.K. Cheng) for both defendants.