Chan Yi Hung v. Yeung Chun Pong Andrew

HCPI001496/2000

HCPI 1496/2000

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Before:  Master de Souza in Court

Dates of Hearing:     22 April 2002 and 23 April 2002

Date of Judgment:     23 April 2002

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JUDGMENT ON ASSESSMENT OF DAMAGES

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1.This is a personal injury assessment following the entry of interlocutory judgment on 8 February 2001. 

2.The plaintiff administrator of the deceased’s estate brought suit for and on behalf of the estate under the Law Amendment and Reform Consolidated Ordinance, Cap. 23, as amended and for the benefit of the dependants of the deceased under the Fatal Accidents Ordinance.

Background

3.The deceased, a young woman, met her death in a tragic traffic accident on 9 October 1999.  At the time, the errant private vehicle was driven negligently by the owner and driver, the defendant.  Liability not being in issue was admitted. 

4.This is an unusual case, the assessment exercise of which could readily be settled for the quantum of damages claimed is indeed reasonable but for the fact that counsel for the defence had no specific instruction to compromise on the claim as presented, however humble and appropriate he personally considered the various heads of claim and the quantum pursued to be.

5.The assessment proceeds upon the basis of the plaintiff’s evidence being admitted completely without challenge or cross-examination.  I am therefore able to accept the witness statements of Chan Yi-hung, the deceased’s father, Sin Fung-ying, the deceased’s mother, Chan Chak-ming, the deceased’s brother, and Kung Pak-lun, the deceased’s then live-in boyfriend.  All the plaintiff’s materials under bundle C are similarly produced and admitted without question, as are the defence documents under bundle D.

6.The deceased was born on 20 January 1977 and was therefore aged 22 at her untimely death.  Having left school, she began and completed training as a beautician.  At the time of the accident, she was employed as a junior beautician with a guaranteed basic income of $7,500 per month.  That excluded additional commissions and bonuses.  Her prospects at the end of her contract were bright.

7.The deceased was born in China in 1977.  She came to Hong Kong with her mother and younger brother to join the plaintiff.  Until she moved out to share accommodation with her boyfriend, she had lived at home.  She was a dutiful and filial daughter.  She helped round the house and was particularly close to her younger brother who, it seems, was of great concern to her.  She was determined that he should receive a good education and freely offered him her spare time and limited financial means.

8.The evidence revealed that the deceased and the brother, a dependant in this case, would meet regularly, usually two or three times a month particularly over holidays.  Whenever they met, the deceased would give pocket money to the brother of sums varying between $100 and $200.  This money would be spent by the brother for school purposes.  At the time of the deceased’s death, the brother was aged 21.

9.The brother finished secondary school in 1999 and started part-time work in April 2000.  He is currently not working and is taking a full-time course in land survey.  He has also undertaken English and computer evening classes after which he worked as a trainee assistant land surveyor in October 2000.  When he was earning $6,000 a month in that employment, he would contribute $1,000 to his mother for housekeeping expenses.  Like his late sister, he was similarly frugal and very careful in spending.

10.The deceased’s father is a construction site general labourer earning a daily wage of $350.  He would work between 15 and 20 days a month on average.  However, due to the downturn in the construction business since late 1997 or early 1998 work has been slack.  He was aged 50 when his daughter died. 

11.The deceased’s mother is employed by the Pearl River Shipping Company as a canteen worker earning $6,800 a month.  She was 43 years old when the deceased met her death.

12.It is apparent from the evidence that although both parents were working, with a household to maintain, it was quite necessary for the deceased to contribute financially for the general well-being of the family of which she was an important part.  In terms of monthly outgoings, it has been established that the father would pay the monthly rent of $2,820, the telephone charge of $1,000 a month, $300 for electricity and $40 for water.  The rest of the expenses, including gas, groceries, miscellaneous household expenses, were taken care of by the deceased’s mother.  The father also contributed $1,000 a month for his parents’ upkeep in China.  Originally there was a claim for the grandparents’ dependency but that has since been abandoned.

13.After the deceased completed Form 5 in 1996 she began full-time employment and commenced training as a beautician with Angel Cosmetics in May 1999.  She was employed by them at the time of her death.  Documentation from her employers forms part of the materials upon which the court has placed reliance in arriving at a fair assessment of quantum. 

14.In September 1999, the deceased qualified as a junior beautician after probation.  She signed a 2 year contract with a guaranteed minimum monthly salary of $7,500 and worked at the company’s Yuen Long branch.  It is apparent from the letter of Miss Cheung dated 20 April 2002 that the deceased stood a very good chance of eventual promotion to assistant supervisor with a guaranteed minimum salary of $12,500 per month but for her death.  She would also have been eligible for retirement benefits under the mandatory provident fund scheme had she survived and enjoyed a full working life.

15.The deceased was not only an obedient and dutiful daughter and an important member of the family, she was also very industrious.  Not content with simply working as a beautician, she attended accountancy evening classes in the hope of obtaining higher qualification and therefore better future prospects.  She led a frugal life.  Unlike many young people today, she did not possess a single credit card, being content to spend well within her means.  I am informed and accept that she had paid everything with cash.

16.The relationship that she enjoyed with her boyfriend, Kung Pak-lun, was harmonious and fruitful.  They planned to wed in early 1998 but her tragic death sadly intervened.  Had she lived, no doubt her financial contribution to her parents and to her brother would have been reduced over time, firstly because the brother would have become financially independent before long and secondly, and more importantly, her own commitments to her new family would have eaten considerably into her own resources.  It would then have been a question of redistribution of available means.

17.On average the deceased, even after she took up residence with her boyfriend, would contribute between $2,000 and $2,500 per month to her parents.  It is anticipated that her parental contribution would have continued into the future although the quantum might well have decreased for the reasons stated. 

Loss of Dependency

18.Dependency claims have been brought on behalf of the father, the mother and the brother who were respectively aged 50, 43 and 21 at the time of the deceased’s death.  It is submitted on behalf of the plaintiff that the parents’ monthly dependency at the time of the accident should be assessed at an average of $2,300 a month.  This is premised on the basis of the deceased’s contribution to the parents varying between $2,000 and $2,500 each month.  This produces a figure as follows:  $2,000 + $2,500 ÷ 2 = $2,250 per month.  It is suggested that for ease of calculation, this might be rounded up to $2,300 per month.  This I accept as appropriate.

19.It has also been suggested that the parents’ dependency would likely have continued for the rest of their lives, this being essentially a Chinese society and particularly in light of the past history of contributions and the closeness and devotion of the various family members to each other.  I accept that this is a most probable scenario.  It has been submitted that in view of the ages of the father and the mother, dependency would well last for some 20 years into the future.  This I accept as being not improbable. 

20.Counsel has referred to a number of decisions.  Kong Yuk-king PI 713 of 1998, a decision of Suffiad J, unreported; Buaphan Wanlayapho PI 336 of 1998, unreported, a decision of mine; and Chow Kam-ho PI 863 of 1998, again unreported and similarly a decision of mine.

21.It is suggested on the basis of the approach in these cases, and particularly when the period of dependency and actual reliance on the deceased by the parents have been taken into account, a post-assessment multiplier of 12 is entirely appropriate.  In the circumstances of this case, I see no reason why 12 years’ purchase should not be adopted for the purpose of calculation.

22.The parents’ dependency figures can therefore be assessed as follows:  pre-trial loss of dependency - $2,300 per month times 30 months that have elapsed since the accident.  That produces a figure of $69,000 to which interest at 4.07 per cent per annum from date of death to date of judgment shall accrue.  The parental post-trial loss of dependency works out at $331,200.  It is made up as follows:  $2,300 per month times 12 months times 12 years.

23.In the revised statement of damages, it is urged upon the court that the younger brother’s dependency should be assessed at $300 a month.  That would be enhanced by 153 per cent until he obtained full-time employment in October 2000.  That produces a figure of $380 per month times 12 months or $4,560. 

24.Following instructions from the plaintiff, I am informed in a written submission of counsel for the plaintiff that the plaintiff is indeed willing to include the brother’s pre-trial loss of dependency into the parental claim for dependency. 

25.Accordingly, at the end of the day, the following sum should be apportioned to the deceased’s brother:

$4,560 plus interest of $4,560 x 4.07% x 30 ÷ 12

= $463.98 = $5,023.98 

That equals $5,023.98.  This will be rounded down to $5,000.  So $5,000 will be paid to the brother from the total award which I shall assess.

Bereavement

26.Under bereavement $150,000 has been agreed as payable.  Interest is also agreed at suitor’s fund rate from the date of death to the date of judgment. 

Loss of accumulation of wealth

27.In the revised statement of damages, the plaintiff claimed $360,000 based on a multiplicand of $2,000 and a multiplier of 15 years but this has been revised downwards somewhat in the written opening. 

28.At the time of her death, the deceased’s bank accounts reflected a credit balance of $14,625.  It is accepted that out of that sum, $7,166 should be attributed to the deceased’s salary for the month of September 1998.  It is therefore clear that she had amassed $7,459 through saving.  She started to work full-time in May 1999 and was able to accumulate this sum within about four months.  On average it is submitted that she was able to save $1,865 monthly.

29.In the circumstances of this case, it is not unlikely that she would be able to put away after all her expenses and commitments a sum of $1,500 each month, which is no more than about 12 per cent of her income at the time of her death.  It has been submitted that a multiplier of 15 should be applied to the multiplicand of $1,500.  This has not been challenged.  Accordingly, on the evidence I agree that it would be appropriate to apply a multiplicand of $1,500 and a multiplier of 15 years.  This produces a figure of $270,000.    This is the amount I shall award for loss of accumulation of wealth.  Loss of accumulation of wealth attracts no interest of course.

Funeral expenses

30.Funeral expenses have been revised down to $18,000 of which a small proportion have not been substantiated by receipts.  This is of little moment as the claim has not been challenged, as it were.  I therefore award $18,000 for funeral expenses plus interest at 4.07 per cent from the date of death to the date of judgment. 

31.In summary, I award the plaintiff $838,200 plus appropriate interest.  This has the following components:  (a) pre-trial loss of dependency at $69,000 plus interest at 4.07 per cent per annum from the date of death to the date of judgment, (b) post-trial loss of dependency at $331,200, (c) bereavement at $150,000 plus interest at suitor’s fund rate from the date of death to the date of judgment (d) loss of accumulation of wealth, $270,000, (e) funeral expenses of $18,000 plus interest at 4.07 per cent from the date of death to the date of judgment.

32.As I have indicated earlier from this total award of $838,200 plus interest, a sum of $5,000 will be apportioned to the younger brother.  The award is subject to the 1st charge of the Director of Legal Aid.  After its satisfaction, the award shall be shared by the father and mother equally.  This is an order that the plaintiff invites the court to make following their agreement.  The plaintiff will additionally be entitled to the costs of this assessment on a party and party basis taxed, if not agreed, and the plaintiff’s own costs will be taxed in accordance with the legal aid regulations.  I shall certify the assessment fit for attendance of counsel.

Ms Alison Liu, of Messr Hobson & Ma, assigned by the Legal Aid Department, for the Plaintiff

Mr Rigno Kwong, of Messrs Tang & So, for the Defendant