Chau Kau and Another v. Sanfield Building Contractors Limited

HCA008190/1983

BETWEEN:-

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Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 14th February 1985

Date of delivery of judgment: 20th March 1985

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JUDGMENT

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Preliminary

1. The plaintiff in this matter is the administrator of the estate of Mr. Chau Yip-hong ("the deceased") by virtue of letters of administration granted to him on the 13th May 1983. The deceased died intestate on the 8th January 1981 when he was struck by a piece of falling masonry while working on a construction site at Shatin. It is not in dispute that although the plaintiff was in fact employed at the time by a Mr. Chu Ping-chung, a sub-contractor, the defendant company was the contractor responsible for the safety of the site pursuant to the Construction Sites (Safety) Regulations Cap. 59 and in particular Regulation 49. The plaintiff is also the attorney of Chau Wai, the father of the deceased.

Liability

2. It is not now in dispute that the defendant is totally liable as a result of the accident and the only question before the court is that of quantum of damages. As usual the claim is brought firstly on behalf of the estate of the deceased under the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 (LARCO) and also on behalf of the dependants of the deceased under the Fatal Accidents Ordinance Cap. 22 (FAO).

The evidence

3. There were only two persons who gave oral evidence. The first was Mr. Chu Ping-chung who was the deceased's direct employer. He said that the deceased had been working for him for some months although he could not say exactly how long. He was employed as a mason and worked on the exterior finish of high-rise buildings. This is a well-paid occupation and at the time of the accident the deceased was earning $130.00 a day. If he had still been working for Mr. Chu he would now be earning $170.00 a day. He said that the deceased worked almost everyday although this depended on the weather. If it was a rainy day no work could be done, but he said the deceased would average about 28 days work a month. He said that while the construction business had declined since January 1981 his own business had not been affected and that he would have been able to offer the deceased continuous employment. He said he did a lot of work for the Sun Hung Kai Group and they were still very active. He said that he did not have any actual records of how many days the deceased did in fact work, but that his employees usually worked 27 to 28 days a month.

4. The only other witness was the plaintiff himself, Mr. Chau Kau. He is a member of the Correctional Services Department and the deceased was his younger brother. He said that the deceased was a good worker and did not gamble or drink and lived in a shared cubicle, not with Chau Kau. However, he said that the deceased came to visit him, initially he said three to four times a month, but in cross examination he agreed it was about once a month. He said that he had four relatives in China to whom he sent about $500.00 a month. These were his father, Chau Wai, his brother Chau Yip-cheung, his sister Chau Yip-kwai and his nephew Chau Ying-bo. Chau Ying-bo is the son of Chau Yip-cheung. He said that the deceased also sent money but he had not told him how much he sent or how often. It would seem, therefore, that if money was sent it was not through Chau Kau. Chau Kau was unable to say how the deceased spent the money that he earned.

5. In addition to the oral evidence a large number of documents were admitted in accordance with Section 47 of the Evidence Ordinance and pursuant to Order 38 of the Rules of the Supreme Court. In view of the admission of liability most of these documents are no longer of any value, but some do relate to the question of quantum.

6. There was a social investigation report compiled by an officer of the Social Welfare Department. He does not say what his source of information is and I can only assume that it was mainly from Mr. Chau Kau together with the information supplied by the Chinese authorities. The report says that the deceased came into Hong Kong in 1979 and was employed by a food company after he got his Hong Kong identity card. He then moved to another company in the same line of business and was earning $2,000.00 per month in 1980 he went to work for the defendant company and his income increased to $130.00 a day. At the time of his accident he was living with two co-workers paying $200.00 per month as rent. The report then goes on to say that besides his daily expenses and savings the deceased made no contribution to Chau Kau's family, but that $500.40 per month was sent to China to supplement the living expenses of his father and the other relatives.

7. There is a Certificate of Relationship and Dependency from the Notary Public Office in lung Koon, Kwangtung, People's Republic of China dated 14th March 1981 which sets out the ages of the relatives i.e. Chau Wai born in 1906; Chau Yip-cheung born in 1950; Chau Yip-kwai born in 1965; Chau Ying-bo in 1979. The Certificate goes on to say that Chau Yip-hong, the deceased was "fully responsible for part of the relatives' living expenses". There is also a statement by Chau Wai, the deceased's father said that he is unable to now work that his daughter, Chau Yip-kwai is attending school and that his son, the deceased, helped with part of the family expenses.

"my son Chau Yip Hang had to help with part of the family expenses. He asked Chau Kau etc to bring money and medicine etc, home amounting to five hundred H.K. dollars a month on the average.".

I assume that Chow Kau referred to in the statement is in fact Chau Kau and indeed Mr. Chau Kau in his evidence confirmed that he sent live hundred dollars to his family a month.

FAO damages

8. I fully appreciate the difficulty in obtaining evidence from persons in China who for a variety of reasons are unable to come to Hong Kong to give evidence. However, I can only base my decision on the evidence before me and even giving that evidence as full and liberal an interpretation as I can in favour of the plaintiff, I am unable to see that there is any base upon which I could make an award under FAO. The evidence is that five hundred dollars a month is sent to the deceased's family in China. There is also evidence from Chau Kau that he sends that five hundred dollars and there is no suggestion that the deceased contributed to that sum. Chau Kau says that the deceased did send money to China, but he is not aware of how often and how much. The family in Chins said that requests for money were made through Chau Kau. There are no bank slips for other documents found with the deceased's papers indicating that he was sending money through the banks to China. One would perhaps have thought that a man in the deceased's position, being single and probably with surplus income above his basic living expenses, would have been sending money to his family but I don't think I can simply make an award on that basis. Not only is there no real evidence of the deceased's remitting money to China the evidence before me if anything tends to suggest that he was not. There will, therefore, he no award of damages under FAO.

LARCO damages

9. There will, first of all, be the conventional award in respect of the loss of expectation of life. This, it seems, is now $20,000.00.

10. As regards a "lost years" award is concerned I adopt the approach of the Chief Justice in Yeung Wing v. F.L. Engineers (Hong Kong) and Others (1981) H.K.L.R. 130. This case went on appeal and is reported at page 407 of the same volume, but the approach of the Chief Justice in assessing the LARCO damages was supported. From this I should assess, first of a11, what the deceased would have earned between the date of the accident and the trial, and secondly what he would have been earning after the trial. This figure is then subject to an appropriate multiplier and then a percentage of the resultant sum is taken as representing the amount which one would have assumed he would have saved and would therefore form part of his estate, the "free balance. In the Yeung Wing case this was taken at 10% of his income. There is support for that here as during the period during which he has been in Hong Kong that the deceased had the sum of $3,800.00 in a savings account which represents approximately 10% of what he earned during that period.

11. I think Mr. Chu Ping-chung, who was undoubtedly an honest witness, somewhat over-estimated the number of days the deceased would normally have worked because, as he says, he could not work when it was raining. I think an average of 26 days a month would be a fair figure to fix.

12. Mr. Leung for the plaintiff argued that a multiplier of 16 was appropriate for a young man aged 23 at the time of the accident and produced some authorities for that. There are, however, other authorities and in Young Wing where the deceased was aged 22, a multiplier of 15 was adopted and that apparently had been agreed by counsel. I propose to adopt that multiplier here.

13. There was no dispute that the deceased was earning $130.00 a day at the time of the accident and that he would now be earning $170.00 a day and therefore proposed to take $150.00 per day for the pre-trial loss of earnings. This then becomes 49 months x 150 x 26 = $191,100.00.

Post-trial loss of earnings

14. I am satisfied that the deceased while a hard worker had no specific training and that I should not anticipate that his earnings would have increased beyond $170.00 day. I therefore take post-trial earnings as 131 months (the balance for the multiplier of years taken) x 170 x 26 = $579,020.00. This gives a total for wages during the lost years of $770,120.

15. There was some suggestion from counsel for the defendants that the deceased would have been paying some salaries tax. This was not pleaded and no evidence has been put forward as to the liability and as the Court of Appeal said in Kowloon Motor Bus Company (1933) Ltd. and Another v. Ng Kung Civil Appeal No. 7 of 1983 it is incumbent on a party who believes that liability to tax is relevant to the assessment of damages to make it clear that he is so alleging and that affords the other side an opportunity to call evidence. This was not done at the present case and I did not take any account of the deceased's liability to tax.

16. The Court of Appeal in Kowloon Motor Bus v. Kung also did not disagree with the trial judge when he said that he would not take into account any change of circumstances which may have happened to the deceased if the accident had not happened. He simply took the position as at that date and did not, for instance, take into account the possibility of the deceased marrying and having a family. Barker, J.A. said:-

"This submission in our view is inviting us to take a leap in the dark.".

With all due respect in assessing damages in this sort of a case the court inevitably must take not one but several leaps in the dark. As the Chief Justice said in Yeung Wing when assessing what the deceased's living expenses going to be:-

"This must be largely a matter of guesswork based on a series of shadowy factors such as the deceased's spending habits, possibility of marriage and children, the prospects and advancement in his career and his probable life style.".

However as the authorities are settled on this I will assume the deceased would have remained single and continued to live as he had done.

17. I propose to follow the reasoning in Yeung Wing and I find that the deceased would have saved 10% of his  earnings over the period of the lost years. Counsel for the plaintiff has vary ably argued that I should award a higher percentage and relies on Peter Zee and Another v. Yau Yat Shing C.A. 59 of 1983 where the percentage assessed at was 55%. There the deceased was earning $5,000.00 a month at death but it would have increased to $200,000.00 a year within a few years. The deceased held a responsible executive position. Here the deceased had no training and I do not think his income would have increased apart from the normal cost of living increases. On this basis, the LARCO damages in addition to the $20,000.00 for loss of expectation of life will therefore be $77,012.00 giving a total of $97,012.00. From that must be deducted the sum of $30,000.00 which had been paid to the plaintiff under the Employees' Compensation Ordinance, leaving, a balance of $67,012.

18. There will be interest at 2% on the award for loss of expectation of life from the 8th January 1981 to to-day and on the loss of pre-trial earnings at 7% until to-day.

19. The plaintiff is to have his costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Frankie Leung (Director of Legal Aid) for the Plaintiff.

B. Yu (Woo, Kwan, Lee & Lo) for the Defendant.