Ting Kam Yuen and Others v. Ng Tai Sing

DCPI32/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES NO. 32 OF 2002

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BETWEEN

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Before: Her Honour District Judge Marlene Ng in Court

Date of Hearing: 6^th September, 2004

Date of Handing Down Judgment: 14^th September, 2004

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ASSESSMENT OF DAMAGES

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Introduction

1.The Plaintiffs (“P”) are the administrators of the estate of Tse Kwok Kei (also as spelt Xie Guoji) (“Deceased”) and the lawful attorneys of Xie Jiannu (“Widow”) and other dependants of Deceased and his estate. The Plaintiffs bring this action against the Defendant (“D”) under the Fatal Accidents Ordinance Cap.22 (“FAO”) and the Law Amendment and Reform (Consolidation) Ordinance Cap.23 (“LARCO”).

2.Pursuant to the Order of His Honour Judge Lok dated 25^th June 2004 (“Order”), interlocutory judgment was entered against D with damages to be assessed. The present hearing is for assessment of damages.

3.D did not appear at the assessment hearing. The affirmation of service of Li Yuk King filed on 10^th August 2004 showed that Order (which set out the date, time and court venue of the assessment hearing) was served on D on 3^rd August 2004 by prepaid post. Mr Lee, solicitor for P, informed me that P had served their list of documents, witness statement, Revised Statement of Damages and trial bundle on D. Upon Mr Lee’s undertaking to file affidavits of service to that effect, I allowed P to proceed with the hearing.

4.Widow gave evidence and adopted the contents of her witness statement. Mr Lee adduced from the South China Morning Post of 6^th September 2004 the exchange rate between RMB and HK$ at 100:93.95 (“Rate”). He therefore submitted that certain monetary figures in the Revised Statement of Damages and Widow’s witness statement should be adjusted accordingly.

The accident

5.On 28^th March 1999, the fishing vessel “Ng Tai Sing” (“Vessel”) encountered rough sea near TCS2 buoy whilst on the way back from fishing grounds to Shau Kei Wan Typhoon Shelter. Deceased was thrown overboard and drowned.

Personal particulars of Deceased

6.According to a Notarial Certificate dated 14^th November 1999, Deceased was born on 18^th August 1968 (although Widow said he was born in 1969) and he was 30 years old at the time of the accident. He was a native of Chuan Dong Gu Long Village, Xiachuan Town, Taishan City, Guangdong Province (“Village”). Deceased came to Hong Kong to work as a fisherman in 1984.

7.Widow was born on 7^th September 1971 and was aged 27 years at the time of the accident. Deceased and Widow were married on 29^th June 1993 in Taishan City. Their son, Xie Wenju (“Son”), was born on 16^th October 1994 and was 4 years at the time of the accident. Both Widow and Son resided at Village. Prior to their marriage, Widow was a farmer and she continued with farming vegetables for food after her marriage.

8.According to the Notarial Certificate dated 14^th December 1999, Widow, Son and Deceased’s mother Chen Gunu (“Mother”) who resided with Widow and Son at Village were dependants of Deceased (see also List of Dependants Provided by Informant dated 17^th June 1999 (“List of Dependants”) given by Deceased’s nephew). Mother passed away on 3^rd February 2004.

9.At the time of the accident, Deceased was employed by D. According to the evidence of Ng Yung-chuen (D’s son and Deceased’s colleague) at the coroner’s inquest, Deceased worked as a fisherman for D on Vessel since October 1998.

10.The evidence on Deceased’s earnings at the time of his death was as follows :

(a)   According to Widow, Deceased told her his monthly salary and allowance were HK$2,300.00 and HK$800.00 respectively (totalling HK$3,100.00). D also provided Deceased with accommodation and meals.

(b)  List of Dependants recorded Deceased’s wages per month were about HK$2,200.00 – HK$2,300.00.

(c)  Form 2 given by D on 25th May 1999 recorded Deceased’s average monthly earnings and earnings in the month preceding the accident were HK$2,000.00. Widow denied the accuracy of D’s claim as to Deceased’s earnings.

11.I reject D’s contention in Form 2 as to Deceased’s wages. Such claim was untested by cross-examination and from my analysis of the household expenses of Deceased’s family below, he could not have supported them on such income, let alone retain any money for his personal expenditure in Hong Kong.

12.Although the Revised Statement of Damages stated Deceased’s monthly earnings were RMB2,200 plus an allowance of RMB1,000 (totalling RMB3,200 or equivalent to HK$2,560.00), it is unsupported by any evidence and it appeared odd for Deceased’s earnings to be denominated in RMB when he worked in Hong Kong. I prefer Widow’s evidence on D’s earnings. She said Deceased had spoken to her about his earnings. Apart from that, she would have a fairly good idea of his earnings since he sent the bulk of his earnings to her for household expenses. She would also know from the household expenses she received from Deceased that his income would not be below a certain threshold. For the above reasons, I also reject the nephew’s estimation of Deceased’s earnings in List of Dependants. There is also no evidence as to the basis of his estimation.

13.I am therefore satisfied that Deceased’s earnings prior to his death were HK$3,100.00 per month. Mr Lee very fairly accepted that, given the present economic climate in Hong Kong, the monthly income of a fisherman similarly employed as Deceased would have been the same today.

Funeral expenses

14.Widow said upon notice of Deceased’s death, she came to Hong Kong with Son, Deceased’s nephew and other relatives for Deceased’s funeral. Although Widow said in her witness statement that she had spent RMB24,500 for the family’s travel expenses to Hong Kong and Deceased’s funeral, she clarified in her evidence that it was HK$24,500.00.

15.There is no documentary evidence for the funeral expenses. But Deceased’s death certificate referred to a cremation order and Ng Yung-chuen told the police he would contact Widow for her to come to Hong Kong to make funeral arrangements as he was unwilling to do so. I therefore accept Widow’s evidence and allow the sum of HK$24,500.00.

Loss of dependency claim under FAO

16.According to Widow, Deceased was the sole breadwinner of the family and Widow, Son and Mother were totally reliant on his financial support. Deceased would bring cash home at festival times and would ask colleagues to bring money home to Widow at other times during the year. He would also buy clothes and toys as gifts for Widow and Son.

17.According to Widow’s declaration dated 14^th December 1999, the family’s average monthly expenses including Son’s school fees and Mother’s medical expenses amounted to RMB2,500 (equivalent to HK$2,348.75 at Rate) and Deceased was able to give them this sum on a regular basis.

18.Widow said in her witness statement that Deceased would on average give RMB2,200 (equivalent to HK$2,066.90 at Rate) a month to Widow for the family’s household expenses. RMB800 would be spent on food, RMB1,000 on medical expenses, RMB62 on Son’s education and RMB400 on other expenses including electricity, fuel, television, tax, clothes and miscellaneous expenses. Although there is a large expenditure on medical expenses, I find Widow’s breakdown of the individual household expenditure items reasonable, especially in light of Mother’s age and ailments (see below). However, the total sum of the average monthly household expenditure items was RMB2,262 (equivalent to HK$2,125.15 at Rate), so I find Widow’s statement that Deceased’s monthly provision of RMB2,200 unreliable.

19.In the circumstances, balancing the above matters and bearing in mind the family’s average monthly expenditure, I find that Deceased’s average monthly provision for the family was about HK$2,200.00 (equivalent to RMB2,341.67 at Rate).

20.In her witness statement, Widow said she would purchase food for the whole family from household expenses given to her by Deceased and, as Mother was old, weak and suffering from asthma, cervical problems and arthritis, about half of the household expenses were used for Mother’s monthly medical expenses until she passed away. However, in monetary terms, Widow said medical expenses were RMB1,000. On the above analysis, RMB1,000 is less than half of the average household expenses and it might, though less frequent, cover some medical expenses for Widow and Son.

21.Mr Lee submitted that Widow’s or Son’s monthly pre-trial dependency is ⅓ equal share of Deceased’s monthly provision as there were 3 dependants (including Mother) at the material time. But there is no doubt on the evidence that until she passed away, Mother’s medical expenses took up a significant part of the household expenses. On the totality of the evidence and having considered Mr Lee’s submissions, I find that a fair estimate of Mother’s medical expenses would be about ⅓ of the household expenses. After Mother’s death, Widow and Son should be entitled to an increase in their dependencies due to relief from payment of Mother’s medical expenses. I accept Mr Lee’s submission that each of Widow’s or Son’s dependency at that time would be equivalent to ⅓ equal share of Deceased’s monthly provision.

22.In the circumstances, each of Widow’s and Son’s pre-trial dependency is as follows :

(a)   from 28^th March 1999 to 3^rd February 2004 (rounded to 58 months)

(HK$2,200.00 x 2/3) ÷ 3 x 58 = HK$28,355.56

(b)  from 4^th February 2004 to date of assessment (rounded to 8 months)

HK$2,200.00 ÷ 3 x 8 = HK$5,866.67

23.The total loss of dependency for Widow and Son from the date of death to the date of assessment rounded to 66 months is (HK28,355.56 + HK$5,866.67) x 2 = HK$68,444.46 or HK$68,450.00 in rounded figure.

24.It is reasonable to assume that Deceased would continue to support Widow and Son if not for his death. In light of their age, I accept that the respective multipliers of 15 and 13 suggested by Mr Lee.

25.Mr Lee submitted that the value of Son’s dependency will increase to HK$1,000.00 a month from the date of the assessment hearing because he will soon be enrolled in a middle school.

26.Widow said when Son starts middle school, boarding fees for each school term will be RMB100. As Son grows up, school and miscellaneous fees will increase to RMB600 per school term. Education-related expenses will include RMB100 per month for miscellaneous fees and food, RMB80 per school term for breakfast, RMB420 per school term for transport and RMB120 per year for school uniform. Each school term comprises of 21 weeks.

27.I accept there will be increased education-related expenditure for Son as he grows up and I find the suggestion of HK$1,000.00 for Son’s monthly dependency reasonable. Thus the future loss of dependency of each of the dependants is as follows :

(a)   Widow : (HK$2,200.00 ÷ 3) x (180 – 66) months = HK$83,600.00;

(b)  Son : HK$1,000.00 x (156 – 66) months = HK$90,000.00.

Thus the total loss of dependency in rounded figure is HK$68,450.00 + HK$83,600.00 + HK$90,000.00 = HK$242,050.00.

Loss of accumulation of wealth under LARCO

28.Widow said Deceased was a healthy, filial, hardworking and frugal person.  He did not have any bad habits and was thrifty in his expenses. Although Deceased sent a large portion of his income to support the family, Widow said Deceased had told her over the telephone he saved about HK$300.00 a month. He did not have any bank account, so he sent his savings to her.

29.There is no objective evidence of Deceased’s savings pattern. Mr Lee submitted that as D supplied free food and lodgings to Deceased, it is reasonable that Deceased would have been able to save HK$300.00 per month prior to the accident. Further, Deceased would have accumulated wealth in the same amount as their dependencies when Mother passed away and when Son is no longer dependent on him. Thus Mr Lee adopted as multiplicand a combination of Deceased’s own savings, Mother’s dependency (from her death) and Son’s dependency (from when he will become financially independent) and a multiplier of 15 to arrive at Deceased’s total accumulated wealth upon his retirement in the sum of HK$158,668.28

30.Mr Lee proposed to discount this sum by 50% to reflect the expenditure Deceased would have incurred between his retirement and the time of his natural death, so the claim on behalf of the estate for loss of accumulation of wealth is about HK$80,000.00.

31.I accept that given his occupation as a fisherman with time spent on the seas and his hardworking and frugal nature, which I have no reason to doubt, Deceased would not have spent much money himself. However, Widow said Deceased visited the family at festival times and would buy clothes and toys for her and Son. Such transport and other expenses as well as his personal expenditure in Hong Kong (eg IDD calls to the family, clothes and expenditure on rest days) would have to come out of the difference between his monthly earnings of HK$3,100.00 and his monthly household provision of HK$2,200.00. Average monthly savings of HK$300.00 would still leave HK$600.00 a month for the above expenses. I therefore find Widow’s claim that Deceased saved HK$300.00 a month prior to the accident reasonable and I accept her evidence.

32.I also agree that Deceased would have more money to save when Mother passed away and Son completes his education and becomes financially independent. But it is unrealistic to assume Deceased would have saved every single cent by an arithmetic calculation. It is also unreasonable to assume that Deceased would not have spent some of this extra money for his own benefit or for the family. In my view, it may not be appropriate to adopt a simple mathematical approach to calculate the loss of accumulation of wealth as proposed by Mr Lee, particularly in the absence of documentary evidence of Deceased’s detailed savings pattern.

33.Mr Justice Bokhary PJ in Lam Pak Chiu v Tsang Mei Ying & anor [2001] 1 HKLRD 193, 207-208 pointed out as follows :

“Finding a multiplier for a loss of accumulation of wealth award would present no greater difficulty than finding a multiplier for a loss of dependency award.  But finding a multiplicand for a loss of accumulation of wealth award would be very difficult, to say the least. Except in cases where there is something more to go on than one has in those cases where the court is driven to taking an almost arbitrary percentage of earnings as a multiplicand, judges and masters calculating such awards would be well-advised to make global awards.  This is not to say that a conventional figure across the board ought to be adopted.  Nor is it to say that a figure should be plucked out of the air.  Even where the exercise does not lend itself to the precision of a multiplicand as in loss of dependency claims, some process of ratiocination must underlie the global award made. And it is necessary that the judge or master indicate at least in general terms how the award has been assessed in light of the relevant factors, including expenditure during the retirement years” (italics supplied).

34.Although there is a real prospect that Deceased would have accumulated some wealth during his natural life from his own savings and from savings arising from the extinction of Mother’s dependency, Deceased would have been expected to spend some extra money on himself and the family. But at the same time, had he been alive, he would have gained experience and skills that would enable him to increase his earnings (and hence savings) as he moved into the prime of his working life. Deceased would also have been able to save more when Son becomes financially independent. Yet during his retirement years, he will have more expenditure for himself than whilst he was at work. Although he would have been able to live at home during his retirement, he would not have free meals.

35.Bearing in mind the above matters and noting the absence of objective evidence of Deceased’s savings pattern, I do not consider a multiplier/multiplicand approach to be appropriate here. However, I am prepared to make a global award in the sum of HK$80,000.00 as loss of accumulation of wealth.

Bereavement

36.I allow this claim which is at the statutory figure of HK$150,000.00.

Other compensation

37.With the assistance of the Association of Fishermen, Widow received insurance compensation for Deceased’s death in the sum of RMB28,800.00 (ie HK$27,057.60 at Rate). D confirmed in Form 2 that insurance was purchased for Deceased in Mainland China but not in Hong Kong. Widow had also received some ex gratia payments.

Summary

38.The total award is therefore :

	HK$
LARCO
Funeral expenses	24,500.00
Loss of accumulation of wealth	80,000.00
FAO
Bereavement	150,000.00
Loss of dependency	242,050.00
	496,550.00
Less insurance compensation (to be deducted from pre-trial loss of dependency)	(27,057.60)
	469,492.40

Interest

39.There will be interest on the pre-trial loss of dependency and funeral expenses at half judgment rate (ie 4% pa) from the date of death to the date hereof. Interest for the bereavement award will be allowed at judgment rate (ie 8% pa) from the date of death to the date hereof.

Costs

40.I make an order nisi that P shall have the costs of the assessment (together with all costs reserved, if any) on a common fund basis to be taxed if not agreed and that P’s own costs be taxed in accordance with the Legal Aid Regulations.

Apportionment

41.Mr Lee asked for apportionment of the above award.

42.Since Son will be enrolled in junior middle school soon (he is now almost 10 years old), his dependency will have increased to HK$1,000.00 per month.  Mr Lee proposed that Son’s pre-trial loss of dependency less his share of the insurance compensation ([HK$68,450.00 ¸ 2] – [HK$27,057.60 ¸ 2]) and his post-trial loss of dependency (HK$90,000.00) totalling HK$110,696.20 plus interest thereon be paid into court when received and be invested by the court until Son attains the age of 18 years.

43.Widow is entitled under FAO to the entire bereavement award. Mr Lee submitted that since the value of Deceased’s estate would not exceed HK$500,000.00, Widow will be entitled to the whole of the residuary estate absolutely pursuant to the Intestate Estates Ordinance Cap.73.  He therefore suggested that the remaining balance of the damages after deduction of the monies apportioned to Son, namely ([HK$68,450.00 ¸ 2] – [HK$27,057.60 ¸ 2]) + HK$150,000.00 + HK$83,600.00 + HK$24,500.00 + HK$80,000.00 = HK$358,796.20 plus interest, be apportioned and paid to Widow through P’s solicitors subject to the first charge of the Director of Legal Aid when received.

44.I agree with Mr Lee and therefore make the following orders :

(a)   D do pay P the sum of HK$496,550.00 with interest on the sum of HK$92,950.00 at 4% pa from 28^th March 1999 to the date hereof and thereafter at judgment rate until payment and interest on the sum of HK$150,000.00 at 8% pa from 28^th March 1999 to the date hereof and thereafter at judgment rate until payment, with credit given for insurance compensation in the sum of HK$27,057.60.

(b)  D do pay P costs of the assessment of damages (with all costs reserved, if any) on a common fund basis to be taxed if not agreed with P’s own costs to be taxed in accordance with the Legal Aid Regulations.

(c)  Of the damages awarded to P,

(i)                a sum of HK$110,696.20 be apportioned for the benefit of Son and be forthwith paid into court with interest thereon upon receipt thereof;

(ii)             a sum of HK$358,769.20 be apportioned and paid through the Director of Legal Aid to Widow with interest thereon.

(d)  Upon the payment into court of the aforesaid sum of HK$110,696.20 plus interest thereon, the Registrar of the District Court shall hold the said sum for Son’s benefit and shall invest the same at his own absolute discretion with liberty for applications for payments of capital and interest of monies invested by him for Son’s maintenance, education and advancement and monthly periodical payments of HK$1,000.00 be paid out to Ting Kam Yuen and Ip Wai Ming, lawful attorneys of Widow, for the benefit of Son from the 1^st day of the month following payment of the aforesaid sum of HK$110,696.20 plus interest thereon into court and thereafter on the 1^st day of each and following month until the fund is exhausted or Son attains the age of 18 years when the balance shall be paid to him forthwith.

(e)  There shall be liberty to apply.

Mr N Lee of the Director of Legal Aid for the 1^st and 2^nd Plaintiffs.

The Defendant in person and absent.