Wong Shu Wan v. Wu Kwok Yau, Simon

HCA008593/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Hansen in Chambers

Dates of Hearing: 20th February, 24th February and 24th April 1984

Date of Delivery: 14 May 1984

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ASSESSMENT OF DAMAGES

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1. The plaintiff was the father and administrator of the estate of WONG YUN KAN. WONG YUN KAN was killed on the 3rd February 1981 when a motor vehicle driven by the defendant mounted the pavement in Castle Peak Road and struck him. At the time of his death WONG YUN KAN was aged 26 years and was employed by the Garden Company Limited.

2. Loss of expectation of life was agreed at $15,000 and funeral expenses at $5,260. That leaves only the lost years claim to consider. It was clear that in this case the FAO and LARCO awards merged.

3. There was evidence that the deceased's income for the few months prior to his death averaged $2,200 p.m. including bonus and other allowances. A Mr Wan of the Garden Co Ltd also gave evidence. He produced a letter from his company that gave the earnings of 3 workers, employed in work similar to the deceased, for January of 1984. Including the annual bonus the 3 incomes were $2,618.36 p.m., $3,433.87 p.m. and $4,234.81 p.m. respectively. Mr Wan's evidence was that, from his work record, one could assume that the deceased's income would be comparable to the higher two figures. He admitted in cross-examination that he did not know the deceased and he was relying on records and the comments of others. Mr Fung urged me to ignore such evidence as hearsay. As with many similar cases there was a lack of evidence regarding the deceased's income and expenditure and what his income may have been at the date of the hearing. I am satisfied that I can ignore the lower figure as Mr Wan's evidence showed it was that of a worker whose record was not particularly satisfactory. There was also evidence from Mr Wan that the deceased would have earned more than the other two as he had been employed by the Garden Company 2 years before they had. However, he was rather vague as to the extent of this higher figure. The higher of the figures quoted to me seems to have an abnormally high amount of overtime. Doing the best I can in the circumstances I consider a figure of $3,750 p.m. to be not unreasonable and the post trial loss will be based on this figure.

4. Mr Wills sought to persuade me that in this particular case there was sufficient evidence from the plaintiff and the deceased's brother to work out an exact free balance. On the other hand Mr Fung produced calculations to show that the deceased's contribution to the family and his estimated personal expenditure at the time of his death gave a figure greater than his average income for the 12 months prior to his death.

5. This case seemed to me to be no different from many involving a single man. There was quite simply insufficient evidence to do a precise calculation of the free balance. In Peter Zee and Tung Bean Administrators of the Estate of Leonard Zee Deceased and Yan Yat Shing and another CA 59/83 the Court of Appeal approved a free balance of 55% for a single man. This approach was also adopted in Chan Ng Mui (Administratrix of the estate of Leung Wing Kin, Tony) v Chan Lau Chu and Wong Chau Hung HCA 9989/82. It seems to me an appropriate approach in this case. The monthly multiplicand is, therefore, $2062.50 (55% of $3750).

6. Mr Fung submitted a multiplier of 15 was appropriate. Mr Wills submitted there was recent authority for a somewhat higher figure based on recent awards. I consider a multiplier of 16 to be correct, although this of course runs from the date of death. (Graham v Dodds the Times July 4th 1983)

7. The post trial loss is therefore

$2062.50 x 12 x 13 = $321,750.00.

8. As to the pre trial loss, it seems to me, to evenly spread the increase between the deceased's earnings at the date of his death and the figure of $3750 I have held to be what he would have earned at the time of this hearing, is the appropriate course. This means the increase of $1550 over the 3 years since his death. The pre-trial loss is therefore :-

9. There will be interest on the general damages at the rate of 2% p.a. from the date of the service of the writ to judgment and on special damages at the rate of 7% p.a. from the date of the accident to judgment. There will be no interest on the assessment of loss of future earnings.

10. I will hear counsel on the question of costs.

Representation:

Appearances: Mr Wills of DLA for Plaintiff

Mr A. Fung instructed by Deacons for Defendant