Sin Kin v. Dragages Et Travaux Publics and Penta-ocean Construction Co. Ltd.

HCPI000599/1999

HCPI 599/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 599 OF 1999

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Coram: Master Cannon in Court

Date of Hearing: 13th June 2000 and 14th June 2000

Date of Delivery: 20th September 2000

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ASSESSMENT OF DAMAGES

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1. Wong Kam Wor was one of six men who died on 6th June 1996 when the Rambler Channel Ridge 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 13th June 2000.

2. Mr. Wong was born on 9th October 1965, and was aged 30 at the date of the accident. His parents and two brothers Kam Fat, mental patient and unemployed and Kam Shui, a cleaning worker were dependent on him. His father died on 23rd February 1997.

3. At the assessment of damages the witness statements of the deceased's mother and brother Wong Kam Fai were admitted into evidence.

4. The brother, Wong Kam Tai, gave evidence and confirmed that there were eight siblings in the family, five of whom were married and lived separately with their families. He and his two brothers, Kam Fat, who is mentally ill, and Kam Shui, who works as a cleaning worker, earning $6,000 per month, lived with his parents at the time of the accident, but his father died on 23rd February 1997. The deceased was the main breadwinner of the family. He worked overtime about four days per week.

5. His other siblings, three older brothers and two elder sisters, were married and lived apart. As to the three older brothers - Wai Kei and Kam Hei were construction site workers but his is not sure what Chi Sing did. His two elder sisters - Chui Shan and Chui Fong - were cleaning workers at the time of the accident. Some of their spouses worked at the time of the accident, some did not. He has no idea of what his siblings or their spouses were earning at that time.

6. He himself worked for the Top Glory Insurance company from November 1995 to March 1997 as a salesman for life and general insurance. He returned his name cards to the company when he ceased working for them. He never had an employee identification card. He did not pay tax because his income was too low, but he had copies of the employer's return.

7. Prior to 1995, he worked in fast food shops. He earned in the region of $8,000 per month at that time. From November 1995 to March 1997 he worked as a salesman in life and general insurance for Top Glory Insurance Company. He never had an employee identification card and he returned his name card to the company when he stopped working for them. He did not pay tax because his income was too low, but he produced copies of the employer's return. Since March 1997, he worked in a fast food shop, but he is not working now. He has never worked as a construction site worker because it is too dangerous.

8. At the time of the accident the family lived in a public housing unit. At the time of the accident Wong Kam Fat was not working, but for several years prior to the accident he worked as a transportation worker in a factory but the factory moved to the Mainland and he could not find another job although he tried to find a job as a cleaner in a factory or in a fast food shop, but he was not successful. He did work for McDonalds for a very short time but due to his illness he did not continue with it. He has never worked in a sheltered workshop. He did not receive a disability allowance because he did not know how to handle the procedures. He was not advised by Kam Fat's doctor that it was good for him to work.

9. At the time of the accident, Kam Shui was a cleaning worker earning about $6,000 per month, now he earns about $7,000 per month. He has never worked as a construction site worker. He came onto the land when he was studying in Primary School.

10. He himself worked as a fisherman when he left school until 1979, and he then worked as a casual worker in different places. He is not married. He knows two of the other men who died in the accident because they all came from the same fishing district. Most of the fisherman who left the sea worked as construction site workers because they have very little education and they have no choice but to take up that kind of work.

11. At the time of the acccident, the deceased gave his mother money, but he does not know how much. He learned of the family expenses from his mother. He himself only gave his mother $2,000 per month because he only earned very little. He never paid any extra to his mother. All along Kam Shui did not give his mother anything because he only earned enough to keep himself.

12. He benefited from part of the $11,546 monthly expenses. He agreed that one fifth of that figure of $2,309, so that when paid only $2,000, he benefited to the sum of $309.

13. He did not not spend much time with his deceased brother because they were both busy with work. Although in his witness statement he said that his brother was a frugal person, he does not really know whether that is so, but he does not think that his brother liked to spend money and, apart from going to work, he seldom went on any trips and he spent most of his spare time at home. On his brother's rest days, when he himself left for work his brother remained at home. His brother always bough cheap things. All these left him with the impression that his brother was a frugal person. Although the deceased's Inland Revenue Estate Duty form shows that he had debts of $75,641.70 on five credit cards at the time of his death, he was frugal at home.

14. He himself did not spend much time with Ah Shui. He and Ah Shui are good to their mother in just an ordinary way.

15. Because Kam Fat did not work, he had no earnings, and it could be said that he depended for his living on the income of his three siblings who were living at home. He himself did not give Kam Fat money very often, but Kam Fat would ask for some money from time to time, and prior to the accident he would gave Kam Fat about $500 per month. In re examination, the witness said that this was not a regular things, he only gave it when Kam Fat demanded it - it was about every three months. It was additional to the $2,000 he gave to his mother. Kam Shui did not give Kam Fat any money. It was the deceased and he himself who supported Kam Fat. Kam Shui was not completely self supporting at the time of the accident, sometimes he would borrow from the married siblings. He does not really know whether Kam Shui was living in any way on the earnings of the deceased. Kam Shui lived under the same roof as the deceased, and since he did not contribute, in a way he used the deceased's money.

16. When he himself worked as an insurance agent he did not get home until about 11 or 12 midnight three or four nights a week. He does not agree that because of this he did not know how much overtime his brother worked because very often he heard it from his brother.

17. His employer's notification of remuneration for the year 1st April 1996 to 31st March 1997 shows income of $55,805. However, at the beginning his employer advanced three months' salary in the sum of $9,000 each month, and the $55,805 represented the net sum after deduction of the advance owning.

18. Madam Sin Kin gave evidence, confirming the truth of her statement which, because she is illiterate, was read and explained to her and she placed her 'x' on it. She does not know how much was paid out on the life policy on the deceased.

19. The five married children would give her about $200 or $300 on the 7th calendar day of each month, in total about $1,000 to $1,500 per month. She used that money for tea clothes for herself. She did not use it for the household expenses.

20. The figures for the family expenses are accurate figures. The public housing unit has four rooms and there are three air conditioners so they consume $700 per month for electricity. It is a big unit, as big as the court room. Kam Tai and Kam Shui did not give money to Kam Fat. The five married children would gave Kam Fat several tens of dollars or one hundred dollars for all five of them, but Kam Fat did not give any of it to her. She does not know how much Kam Fat got in a month.

21. Kam Shui is of normal health, but he does not want to work on the construction sites. He works as a cleaner. Kam Tai does not want to work as a construction worker. It is up to them to decide where they work.

22. Although Kam Shui had a job, he did not earn enough for his own expenses. He lived at home and had the benefit of sharing the utilities without paying for them. She agreed that this arrangement must be a temporary one and it could not allowed to continue for long. She did not know what she could do to end the arrangement, since Kam Shui is her son and she would not throw him out.

23. She does not know what the deceased earned for the 4-5 years he worked as a construction workers or how much he earned for the few months prior to the accident. All she can tell is that he gave her $8,000 per month. She knows what the household expenses are and less than those amounts would not be sufficient. The deceased and Kam Tai had dinner at home. When there was no overtime, the deceased came home shortly after 6 p.m., but it would be 11 or even 12 midnight if he worked overtime. She does not know how often the deceased worked overtime, but she knew when he came home earlier it meant he did not work overtime for that day, if he returned late then he presumed he worked overtime. She does not know how many days a week he worked overtime.

24. She does not agree that she spent less than $6,000 on food or less than $700 on electricity. She says the bill for water is $270 per quarter, being $90 per month. It is not substantially less than that.

25. Her husband attended a private practitioner for his medical care, he had an operation to remove half his lungs. Kam Shui was dependent on the earnings of the deceased.

26. Miss 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 thourgh 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 that information, she put down $800 per day and that he had worked for six days only. Based on that 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 casual 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.

27. 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.

28. 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 allowances, 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 then 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

29. The plaintiff's case is that the earnings were $30,000 per month ($1,000 per day inclusive of overtime for 30 days). The defendant argues the overall picture suggests that the deceased earned less than $20,800 and that his probable monthly earnings should be about $17,000, in line generally with the wages of riggers employed by the defendant who earned $15,680 per month between June and November 1995 and the riggesr currently employed. The deceased had few savings during the six months prior to the accident. If he had been earning $30,00 or even $20,800, after giving his mother $8,000, he would have had a surplus of $22,000 or $12,800, but this is not reflected in his bank accounts. The mother does not know how much the deceased earned. The deceased's brother says that he worked overtime about four days per week. The deceased's tax return for 1994/95 shows the total assessable income to be $185,767/12 = $15,680 per month. For the tax year 96/97 his deductions would be $146,000 ($83,000 + $7,000 + $24,500 + $7,000 + $24,500). On an income of $204,000 ($17,000 x 12), he would pay tax on $58,000 which would be $4,460. The deceased could not have been earning $20,800, otherwise there would be some evidence of that income in the deceased's bank account.

30. Both parties investigated this issue but there is no incontrovertible evidence available. The deceased only worked for 6 days. The Form 2 shows that the deceased was paid $800 per day, and Miss Ng says that she received that information from the sub contractor.

31. 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.

32. 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.

33. 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.

34. The plaintiff's case that the deceased earned $30,000 regularly every month is not sustainable. The deceased worked as a construction worker 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.

35. 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.

36. On the issue of the earnings at the date of death, there is the evidence of the brother that the deceased worked four days per week overtime. The mother does not know how many days a week he worked overtime, but she knew when he came home early it meant he did not work overtime and if the he returned late then she presumed he worked overtime. Ms. Ng gave evidence of the wages of monthly employed riggers which indicate much lower wages. However, the deceased was employed on a casual basis and the comparison is not necessarily valid since the nature of casual 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. 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.

37. 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 important. The deceased was on this project for six days at the date of the accident. There is evidence that he worked overtime. There is the evidence of Ms. Ng that it was usual for construction workers to work overtime, and the records show that the dependent paid overtime to its own riggers. I find it unlikely that he would have worked 30 days per month with overtime on a consistent basis. Doing the best I can on the evidence before me, I find that the deceased would have worked 28 days per month, that the basic wage was $800 per day. I further find that on 21 of those days he would have earned $1,000 per day, representing $200 per day overtime.

38. According to my calculation this amounts to $26,600 per month ($22,400 (28 x $800) + $4,200 (21 x $200)), which after tax would be $25,022.

Notional Income at the Date of the Assessment

39. 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.

40. 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.

41. 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.

42. On that finding, the notional income at the date of assessment is $30,523.50, which I round up to $30,524, which after tax would be $29,865.

43. These figures produce a median of $28,562 and $27,444.

Household Expenses

44. The plaintiff submitted that it would be difficult to expect the plaintiff to recall the details of the family expenses, the plaintiff did her best to give details and the amount claimed is eminently reasonable, with six family members in the household, and that anything less than the amounts claimed would not be sufficient. 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.

45. 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 35.42% and 33.43%, depending on the findings made by me, which are well within the normal pattern. 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.

46. 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.'

47. The plaintiff submitted that the dependency was calculated purely by reference to the $8,000 contributed by the deceased, out of which was deducted the $1,200 to account for the deceased's own share. There is no serious challenge to the contribution made by the deceased. It does not matter that other family members gave money to the plaintiff. Kam Tai's contribution went to support his own share of the family expenses and the money paid by the married siblings were used by the plaintiff for herself and was not mixed with the general household expenses. It is not relevant that the married siblings occasionally gave some money to Kam Fat or Kam Shui.

48. The defendant submits that the household expenses are high and should be subject to some reduction.

49. As to Kam Shui's dependency, the defendant submits that this should not be allowed, but if allowed it should cease at the date of the assessment.

50. The plaintiff accepts that Kam Shui should not depend on the family forever, but he only earns $7,000 per month. Being the youngest son, it is not surprising that he would be indulged by his parents and elder brothers and sisters to some extent. As his mother commented, he would not be kicked out of the family because he did not contribute to the household expenses.

51. It is not necessary to show that the financial support provided by the deceased to a dependent was a matter of necessity or that is was socially obligatory. It is not relevant that Kam Shui could perhaps earn more as a construction site worker or fast food shop worker or that Kam Fat could perhaps obtains public assistance or work in a sheltered workship or that he received some support from other siblings.

52. Section 6 of the FAO provides that 'damages, other than bereavement, may be awarded to dependants in such proportions as reflect their respective injuries as a result of death.' The issue is one of whether on a balance of probabilities, the deceased would have continued to provide financial support but for the accident. Provided there has been such support in the past and, in the absence of reasons suggesting that the support would have ceased but for the death, there was an actual dependence and the claim is sustainable.

53. It is recognised that at some stage Kam Shui would become wholly dependent in the sense that he would make some contribution to the household expenses. On that basis, the plaintiff suggests a multiplier of 6 for his dependency.

54. I accept the plaintiff's evidence as to the dependency of Kam Shui, and allow his claim under this head.

55. I accept the figures for household expenses and I find that the deceased made a contribution of $8,000 per month to the household expenses. Moneys received by the plaintiff and the two siblings are separate matters and are not relevant to the payment made by the deceased.

56. In my calculation of dependency, I follow the method used by the plaintiff, which accords with Segroatt J's approach.

The Multipliers

57. The defendant submits that the deceased was 30-8/12 years at the time of the accident. He would have retired as a rigger (or heavy load coolie) between 50 and 55, with retirement from a more sedentary job (such as watchman) at the age of 60. His working life would be to 60, that is 29 years working life. When selecting multipliers, a significant period of up to ten years with substantially lower earnings before retirement should be taken into account. The defendant suggests 14 for the deceased. The mother was 66 at the time of the accident, and a multiplier of 7 would be appropriate. Kam Fat was 35 at the accident and a multiplier of 12 should be adopted, taking into account the contributions from the other siblings. Kam Shui was 28 at the accident, but he should not be treated as a dependent. Alternatively, if accepted by me as a dependent, the dependency should cease some time before or at the very least at the time of the assessment.

58. The plaintiff submits 16 for the deceased, 6 for the mother, 16 for Kam Fat and 6 for Kam Shui.

59. 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.

60. 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; 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 adopted 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.

61. For the deceased I allow a multiplier of 15. For the mother, I allow 6. I accept Kam Fat as a dependant and allow a multiplier of 14. I accept Kam Shui as a dependent, and allow a multiplier of 6 for him.

62. Having made these findings, the calculation of the pre-trial and post-trial loss of dependency in accordance with the plaintiff's method, and taking into account the tax payable, produces a total figure of $981,330 ($353,562 + $627,768), as follows -

FAO

Earning at death: $26,600

Earning (after tax): $25,022

Earning at date of assessment: $30,524 ($26,600 x114.75%)

Earning (after tax): $29,865

LOSS OF DEPENDENCY

Value of dependency of Immediate family

$8,000 - $1,200 = $6,800

($6,800 / $25,022) x 100% = 27.18% of the income of the Deceased

Pre-trial dependency

Median income: $25,022 + $29,865 ÷ 2 = $27,444

For the period from June 1996 to February 1997 (when father died)

Immediate family: $25,022 x 27.18% x 8 months = $54,408

The sum of $54,408 is apportioned as follows:

For the period from February 1997 to June 2000 (date of assessment)

$27,444 x 27.18% x 40 months = $305,177

The sum of $299,154 is apportioned as follows:

Total: $54,408 + $305,177 = $359,585

Post-trial dependency

The amount of dependency for each dependent:

$29,865 x 27.18% / 3 = $2,706

For the remaining 2 years when the mother and Wong Kam Sui are still dependants

For the balance period when only Wong Kam Fat is dependent

Adopting a multiplicand of $5,000,

$5,000 x (14 - 6) x 12 = $480,000

Total: $64,944 + $64,944 + $64,944 + $480,000 = $674,832

Grand total of dependency: $1,034,417

BEREAVEMENT: $70,000

Loss of Accumulation of Wealth

63. 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.

64. 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 15 years.

65. If the deceased earned $17,000, or more, with a dependency of $8,000 per month, no savings would have accrued, given his extravagant lifestyle. He had three credit card debts of $75,641.70 at the date of his death. At the cessation of dependency of his father and Kam Shui, but even with a surplus, no savings would have been accumulated.

66. The average life expectancy of males in Hong Kong at the age of 35 in 2001 is 42.99 years, so that he would have lived to 78, which means a retirement of 18 years. During those years of retirement he would have depleted the accumulation of wealth by the time of his natural death. If there were any savings at the time of his natural death, it would be 10% or less given the deceased's lifestyle and tax liability. The loss of accumulation of wealth would be $257,492 ($19,507 x (15 years - 18 months = 132 months) x 10%).

67. As to the Provident Fund which commences in January 2001, the deceased would be 35, with a working life of 25 years, as a heavy load coolie and sedentary worker, so that a multiplier of 10 should be used, and the calculation would produce a figure of $117,042 under this head.

68. The plaintiff accepts the principle that at the time of his natural death, the deceased's savings would be depleted. 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.

69. As to evidence of propensity to save, the Estate Duty forms show that although the deceased did not have much savings in his account, he did have a life insurance policy which is proof of financial planning. Having regard to his lifestyle and his responsibility to the family as well as his income, it is reasonable to infer that he would have been able to save after the dependency of some family members ceased, and that he could have accumulated wealth by the time of his natural death. This is particularly so, with the introduction of the MPF in December 2000 and bearing in mind his age.

70. The plaintiff's figures, based on his scenario la, produces a total of $669,000.

71. 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.

72. I follow the approach of Keith J in this case. The deceased was 30, he had not accumulated much by way of savings, he had taken out a life policy, he had credit card debts. On balance, I am satisfied that as he grew older and his family's dependency reduced he would have accumulated some savings.

73. I calculate the loss of accumulation of wealth in accordance with the plaintiff's method, incorporating as it does, the cessation of the dependency of the mother and Kam Shui, and the commencement of the MPF in January 2001. I apply a 15 year multiplier in calculating the loss of accumulation of wealth, which results in a total of $634,000, set out as follows:-

(a) Pre-December 2000 (viz. Before MPF)

After deducting dependency and his own share of household expenses, the balance of the deceased's income was: $29,865 - $8,117 = $21,748

Out of that, the deceased would have been able to save $3,000 per month

$3,000 x 6 months = $18,000

(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.

$4,000 x 19 months = $76,000

(c) June 2002 awards (cessation of dependency of mother and brother Wong Kam Shui)

The cessation of dependency of mother and brother Wong Kam Shui would mean more savings accumulated

$5,000 x (15 x 12 - 72) = $540,000

(d) Grand total of loss of accumulation of wealth

$18,000 + $76,000 + $540,000 = $634,000

74. 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 $510,000 in the deceased's estate at the end of his natural life span.

75. 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

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

Funeral Expenses

77. 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.

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

79. 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.

80. 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.

81. 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.

82. 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).

83. In this case the funeral expenses are claimed at $220,000, and receipts were produced.

84. I allow the claim save and except the sum of $12,100 for the mouring meal, so that the claim in the sum of $207,900 is allowed.

85. 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

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

Interest

87. 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)

88. 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.

89. 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.

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

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

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

Costs

93. 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 Plaintiff

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