Siu Yin Kwan and Another v. The Personal Representatives of Jimmy P.(Bo) Gary, Deceased and Another

HCA003120/1986

1986, No. A3120

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Jennings in Chambers

Date of Hearing: 15 and 16 October, 1987

Date of Delivery: 27 October, 1987 (P.I. file)

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ASSESSMENT OF DAMAGES

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1. The particulars of the accident giving rise to these claims for damages are set out in the Statement of Claim.

2. Both deceased persons were members of the crew of the ship "The Osprey" which sank on 8 September, 1983 during typhoon "Ellen". The 1st Defendant was master of the vessel, and the 2nd Defendant was the owner of the vessel and the employer of the 2 deceased persons.

3. The writ was issued on 17 May 1986 and served only upon the 2nd Defendant, being served upon the Official Receiver since the 2nd Defendant company is in liquidation. Interlocutory Judgment was entered against the 2nd Defendant on 22 April 1987, for damages to be assessed.

4. I heard evidence and submissions on behalf of the 1st Plaintiff on 15 October and evidence and submissions on behalf of the 2nd Plaintiff on 16 October, but Mr. Mitchell agreed that for convenience my assessments of damages could be embodied in one document.

5. The evidence before me consisted of 3 bundles of documents submitted by the Plaintiffs, notice of which had been served on the Official Receiver pursuant to Order 38 of the Rules of the Supreme Court, no counter-notice having been served. In addition, oral evidence was called on behalf of each Plaintiff.

1st Plaintiff.

6. The 1st Plaintiff sued under Cap. 23 (LARCO) on behalf of the estate of the deceased, she being the mother of the deceased, and entitled to the whole estate, and on behalf of the dependants of the deceased under Cap. 22 (FAO). In the Statement of Claim the FAO action was said to be on behalf of the mother, brother and sister of the deceased and the sister's 4 children. However, Mr. Mitchell told me that he could not pursue the dependency claim on behalf of the brother and sister as both were earning.

LARCO Claim.

7. The LARCO claim had 4 aspects - special damages, pain and suffering, loss of expectation of life and "lost years".

8. The special damages were in relation to funeral expenses and those expenses were set out in a Schedule submitted to me. The brother of the deceased gave evidence to support the claim, but his evidence fell rather short of the figures on the Schedule. Receipts for the items of expenditure could not be submitted as exhibits as they were in Chinese and had not been translated. The brother refreshed his memory from the receipts and I accepted that he had properly expended the sum of $17,422.00 and I award that sum as special damages.

9. As Mr. Mitchell pointed out, the claim in respect of pain and suffering was unusual in an accidental death claim. Mr. Mitchell relied upon the contents of a letter written to the widow of the 2nd deceased by the company which employed the 2 deceased men on behalf of the 2nd Defendant, being document 12 in the main bundle. This letter was claimed to support the proposition that the crew members were in the sea many hours before death would have occurred, but as Mr. Mitchell himself described it the letter was "hearsay on hearsay", since it related the experiences of the sole survivor of the wreck who was not available. I am satisfied that the author of the letter could not have been allowed to give oral evidence of the matters relied upon as establishing pain and suffering. I therefore reject what Mr. Mitchell described as a claim for a ''nominal" sum of $10,000.00 and I make no order for damages for pain and suffering.

10. The loss of expectation of life claim was for the conventional award of $20,000.00 and I award that sum as damages.

11. I am now left with the 4th, and major, claim for damages for "lost years".

12. As established by his birth certificate, document 1 in the main bundle, the deceased was 27 at the time of his death. Mr. Mitchell submitted that precedents varied between 14 and 15 years and suggested that a multiplier of 15 was appropriate, and that is the figure I shall adopt.

13. The documentary evidence clearly established that at the time of his death the deceased was in receipt of a cash salary of $3,000.00 per month and that he also received meals on board ship valued at $630.00. I accept that at death the deceased's total earnings were $3,630.00 per month. As to his likely earnings at the present, document 19 in the main bundle is a statement from the managing director of the company which employed the deceased on behalf of the 2nd Defendant. He stated that in a similar job at the present time the deceased would have been earning $4,750.00 - $5,000.00 per month, including meals. As requested by Mr. Mitchell I shall adopt the figure of $5,000.00 as being the current earnings.

Pre-trial loss of earnings.

14. In calculating the pre-trial earnings I shall use a median salary figure of $4,315.00. The multiplier is 49 months, giving a total figure of $211,435.00.

Loss of future earnings.

15. Deducting the 49 months pre-trial period from the multiplier period of 15 years leaves a post-trial multiplier of 131 months which, applied to the monthly earnings of $5,000.00, gives a loss of future earnings of $655,000.00.

Free Balance.

16. Mr. Mitchell submitted that the generally accepted "free balance" figure in cases of a similar nature was 55%. He sought to persuade me that I should adopt a slightly higher figure of 58%, based upon certain aspects of the evidence of the family circumstances, inferences as to the deceased's personal expenses and a notional figure for savings. However, I concluded that I should use the figure of 55%, both for pre-trial and post-trial loss.

LARCO Damages.

17. I award damages under the LARCO claim as follows:-

Interest

18. There will be interest on the award for loss of expectation of life at 2% from the date of issue of the writ, and on the funeral expenses and pre-trial loss at 5% from the date of the death to the date hereof.

FAO Claim

19. The mother's FAO claim merges with the LARCO claim, and Mr. Mitchell did not pursue the FAO claim on behalf of the deceased's brother and sister, which leaves only the sister's 4 children to be considered under the FAO claim.

20. I accept the evidence of the deceased's mother that the deceased was in the habit of contributing $2,500.00 per month towards the household expenses. There were 8 people in the household, including the deceased himself. I shall calculate the dependency of each child by dividing the deceased's contribution by 8 and attributing the resulting sum of $313.00 to each of the 4 children.

21. The 2 older girls both started work recently and, as suggested by Mr. Mitchell, I find that their dependency continued until last month, which gives a multiplier of 4 years or 48 months in each case.

22. The other 2 children are both still students, but their mother was unable to assist as to how long their education would continue. Mr. Mitchell asked me to assume that the boy's training in carpentry and masonry will last until he is 21. He further asked me to assume that the girl would also remain a student until 21, though there was no evidence at all of the nature of her studies. I shall calculate the dependency of these 2 children on the basis that they will start work at 18, i.e. at about the same age as the 2nd daughter.

23. The girl was 13 at death, giving a multiplier of 5.

24. So far as the boy is concerned, he was 11 at the date of death, giving a multiplier of 7 years.

FAO Damages.

25. Accordingly I award a total of $75,120.00 under the provisions of the FAO being apportioned as to $15,024.00 to Woo Shuk Fan, $15,024.00 to Woo Shuk Fong, $18,780.00 to Woo Shuk Yi and $26,292.00 to Woo Chak Ming.

Interest.

26. There will be interest en the FAO pre-trial total at 5% from the date of the accident to the date hereof.

2nd Plaintiff.

27. According to the Statement of Claim, the Plaintiff, the mother of the deceased, sued firstly en behalf of the dependants of the deceased under FAO, and secondly en behalf of the deceased's estate under LARCO. It was stated that the dependants for whose benefit the FAO action was brought were the deceased's mother and wife. However, at the outset of his submission, Mr. Mitchell informed me that in his opinion the "wife" had never been married to the deceased, that she had been advised of this by his instructing solicitors, and that she had been refused legal aid to apply to be joined as a plaintiff. Mr. Mitchell said in his view the lady concerned had no claim in law in respect of the deceased's estate. He explained that the deceased had been a married man in June, 1983, and on 21st June (as confirmed by the District Court file which was before me en subpoena) he obtained a decree nisi, and went through a form of marriage ceremony during June in Shanghai. The District Court file showed than the decree absolute was granted on 13 August, 1983.

28. I was aware that the "wife" was present in the building and called her into Chambers. She appeared to me an intelligent person and she informed me that the "marriage" in Shanghai took place on 30 June 1983. She confirmed to me that the whole situation, as I then outlined it to her, had already been explained to her and that she accepted it as being correct.

29. The hearing continued en the basis that the only claim new being pursued was the LARGO claims, the mother being the only claimant to the estate.

30. Mr. Mitchell said the claim was for pain and suffering, on the same basis as the claim of the First Plaintiff, for loss of expectation of life in the conventional sum of $20,000.00 and for "lost years". There was no claim for funeral expenses, the body never having been recovered.

31. As with the First Plaintiff's claims, I an not prepared to make any award for pain and suffering, but I do award as damages the sum of $20,000.00 for loss of expectation of life.

32. The only matter remaining to be considered is the "lost years" claim.

33. As established by his birth certificate, the deceased was 34 at the time of his death. Mr. Mitchell submitted of 14 years was appropriate as multiplier, referring to a 1985 precedent, and I accept that figure. I accept the evidence in the documents that the deceased was earning in cash and benefits $3,590.00 per month. I further accept the evidence, derived from the same sources as related to the first deceased, which indicates that $5,000.00 per month is a proper figure for the earnings the deceased could now have been enjoying.

Pre-trial loss of earnings

34. In calculating the pre-trial loss of earnings I shall adopt a median salary figure of $4,295.00 per month. The multiplier is 49 months, giving a total figure of $210,455.00.

Loss of future earnings

35. The multiplier is 119 months, being 14 years, minus the 49 month pre-trial period. Applying the multiplier to the monthly earnings of $5,000.00 gives a loss of future earnings of $595,000.00.

Free balance

36. The deceased's monther gave evidence, which I believed, that her son remitted to her in Shanghai for her maintenance a regular monthly sum in Renminbi which, in Hong Kong dollar terms, averaged $1,500.00. She explained that the balance of US$6,676.00 in her son's savings account (statement included in the bundle of documents) was derived as to ½ from her late husband and 1/2 from savings from earnings. She described her son as leading an austere pattern of life. I accept that in the present case there is sound evidence to indicate that the figure of 55% should be accepted for the "free balance", both for pre-trial and post-trial loss.

LARCO damages

37. I award damages under the LARCO claim as follows -

Interest

38. There will be interest on the award for loss of expectation of life at 2% from the date of issue of the writ and on the pre-trial loss at 5% from the date of the death to the date hereof.

Costs

39. The costs of the Plaintiffs and to be paid by the Defendants, taxed if not agreed. The Plaintiffs' own costs are to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for counsel.

Employees' Compensation

40. I was handed copies of the awards made in respect of employees' compensation, being $242,000.00 in each case. Mr. Mitchell explained that the employer company was in liquidation and that there was no prospect of recovering anything from the employer, and that the insurance company against whom the Plaintiffs will now have to proceed denies liability on the basis that the employer is not the company in respect of which they provided cover. Mr. Mitchell explained that it had been the intention of the Plaintiffs to sue the insurance company for either the sum awarded by way of employees' compensation, or for the sum awarded in these proceedings, whichever was the greater. In these peculiar circumstances, I take no account of the employees' compensation award in my assessment of damages.

Representation: