Tam Po Hong and Another v. Chow Ho Ming

HCA004591/1988

IN THE SUPPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Chan in Court

Date of Hearing: 30 January 1990

Date of Judgment: 13 February 1990

Date of Delivery: 23 February 1990

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ASSESSMENT OF DAMAGES

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1. The deceased, one Tam Chung Chi, was killed on 8th February 1986, while he was travelling as a passenger in the vehicle owned and driven by the Defendant at Shatin. The Plaintiff, the father and administrator of the estate of the deceased, commenced these proceedings in June 1988. Interlocutory judgment for damages to be assessesd and costs was ordered by consent on 7th November 1988. However, it was not until 12th September 1989 that judgment was entered pursuant to the consent order.

2. Two witnesses, the parents of the deceased, were called on behalf of the Plaintiff. The Defendant called no evidence.

3. The deceased was conscious and restless when he arrived at the hospital after the accident. He died, about 2 hours later, of multiple injuries. The deceased was aged 17 at the time of his death. He was the third son of a family of 2 sons and 2 daughters. He was then living with his parents and siblings. He had been working for his father, in the family business of selling construction materials, for 8 months prior to his death. He had attained education up to F.2 level when he ceased for poor performance at school. He immediately joined his father's business after quitting school. He was at first paid $2,500.00 a month. His pay was increased to $3,500.00 a month about 5 to 6 months prior to his death. He would also get bonus and double pay. He did what was required to be done at the shop i.e. as a salesman, a delivery attendant or a loading worker. He was in good health and did not have much hobbies prior to his death. He did not smoke or drink. His social activities comprised of playing football and going out with his friends occasionally.

4. In the Statement of Claim, the Plaintiff claimed under both the Fatal Accident Ordinance, Cap.22 and the Law Amendment and Reform (Consolidation) Ordinance, Cap.23 for the benefits of the dependents and the estate respectively.

LARCO

5. In addition to the monthly salary of $3,500.00, the father said the deceased had been paid an extra month's salary at Chinese New Year. There was no written record to substantiate such claim. He also alleged that the deceased would be paid about $1,000.00 to $2,000.00 bonus like the rest of the employees. The deceased's elder brother was only paid $3,800.00 though he had 2½ years more experience than the deceased. The salary records produced consisted of loose slips of paper with the name, date, amount of wages and a chop with a surname endorsed at the bank for "Director". The father's evidence as to the identity of the coppiler of such salary records, and his explanation as to his statement to the police on 13th February 1986 that the deceased's earnings was about $3,000.00 a month, was confusing and unsatisfactory. Furthermore, the father's business had in fact "temporarily" ceased as from this year as it had become non-profitable to run due to a combination of shortage of manpower, high overheads and a lack of business. It is unclear how the family survives at present as all, except the mother who is a housewife and the youngest daughter who is unemployed, used to work in the family business only.

6. As the family busines had ceased, the deceased could not have worked in the same had he been alive now. However, no evidence at all was called by the Plaintiff on the likely earnings a person in the deceased's position could make in the open market. The deceased received little education and is unlikely to be able to engage in anything but manual work, probably doing the same sort of work as in his father's shop. It would not be unreasonable, however, for a young man in the deceased's position to be able to earn a present income of $4,000.00 in jobs of similar nature. I shall adopt the figure of $4,000.00 as the would-be post-assessment earnings of the deceased.

7. I am not satisfied with the father's vague suggestion of a bonus. There is no evidence that the deceased's elder brother had received any increase in his salary since the death of the deceased. There is no basis for counsel for the Plaintiff to suggest the 10% per annum increase since 1986. The employer of the deceased is the family business. Business was not good. The practice was to draw money from the family business to defray family expenditures whenever necessary. I do not accept that any notional increase at such rate should be applied. I would, however, accept that probably the deceased would get the same income as his elder brother after the same experience had been attained i.e. at the rate of $3,800.00 in 1989. In the premises, pre-assessment monthly income of the deceased is assessed at a median figure of $3,955.00 [ ( ( $3,500 + $3,800 ) ÷ 2 ) x ( 13 ÷ 12 ) ].

8. The mother said the deceased used to contribute $2, 500.00 towards the family expenditure of $7, 000.00 odd a month. The deceased left a credit balance of $4.09 in his only bank account at the time of his death. Apart from occasional meals out, the deceased had all his meals provided at home or at the shop. Apart from an allowance of about $200 to the younger daughter, all members of the family shared equally in the family expenditures. At $7,000.00 a month for family expenditures, the deceased's share would have been $1,166.66. As the deceased had no savings, he would have spent on himself the whole of $1,500.00 he kept for himself. I find that to be reasonable for a young single man like the deceased. In the premises, the personal expenses of the deceased would have been $2,666.00 per month, or 76% of his earnings. Such a high percentage of personal expenditures is not uncommon for such a young single man in Hong Kong. Counsel for the Plaintiff urged that I should adopt the "conventional" figure of 55%. Only in the absence of any evidence as to the pattern of expenditures of the deceased should the court attempt to resort to arbitrary conventional figures. If there is evidence of actual figures, there cannot be room for speculation. The free-balance is thus 24% at the time of his death.

9. However, the Court of Appeal had ruled in Peter Lee v. Yau Yat Shing C.A. No.59 of 1983, that it would not be improper for the court to make allowance for the possibility that the deceased would have married sometime in the future in assessing the figure for the free-balance. It is natural for a husband to have spent less on himself upon getting married. More so if he then becomes a father. The effect of taking such a factor into account in the care of a deceased dying young and unmarried is a reduction of the rate of his personal expenses i.e. an increase of the free-balance. In the premises, it would be appropriate to adopt a free-balance of 40% for the deceased.

10. Counsel for the Plaintiff asked for a multiplier of 17 whilst counsel for the Defendant argued that 16 is appropriate. I accept 17 to be in line with a young man of 17 who can be expected to have a working life of at least 40 veers. In the premises the pre-assessment loss would be $75,936.00 ($3,955.00 x 40% x 48 months), and the post-assessment loss would be $249,600.00 ($4,000.00 x 40% x 156 months); making a total of $325,536.00.

11. An award in the sum of $30,000.00 is made for the loss of expectation of life.

FAO

12. Though claims were made in the pleadings on behalf of the parents under Cap.22, counsel for the Plaintiff did not pursue such claim at the assessment. Apparently, the father is not really a dependent of the deceased and the mother's claim would have merged with the LARCO claim in any event. The younger sister of the deceased was still at school at the time of his death and is still non-incoming producing at the time of the assessment. She would also not be a beneficiary under an intestacy of the deceased. However, no claim was made on her behalf in the Statement of Claim and no amendment to include such a claim was made at the assessment. In the premises, no award is made under this head.

13. Special damages were agreed at $9,494.00 comprising of:-

14. Interest will be awarded on the general damages (excluding post-assessment loss) in the sum of $105,936.00 at the rate of 2½ % per annum from the date of writ until payment; and on special damages in the sum of $9,494.00 at the rate of 5% per annum from the date of death until payment. There will be an order nisi for costs of the assessment to the Plaintiff with a certificate for councel.

Dated this 13th day of February, 1990.

Representation:

Mr. Albert Tsang instructed by Chung & Kwan for Plaintiff.

Mr. Ashok Bakhrani instructed by Ng, Lie, Lai & Chan for Defendant