Tsang Yin Ha v. Hui Ka Wing and Another

HCPI 212/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 212 OF 2006

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BETWEEN

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Coram : Before Master J. Wong in Court

Date of Hearing : 23 and 24 April 2007

Date of Judgment : 4 May 2007

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J U D G M E N T

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The Application

1.This is an application for assessment of damages in relation to a fatal accident.

Background

2.Mr. Lin Ming Ho (“the Deceased”) was born on 1 July 1974 in Hong Kong.  He lived with his parents, an elder brother and a younger sister.  The Deceased studied in Hong Kong and commenced his apprenticeship in 1997.  After about 2 years, he obtained a Certificate of Building Studies from the Vocational Training Council, and became a Construction Technician on 31 July 2001.

3.In the meantime, the Deceased worked as a Construction Worker for some years.  On 21 December 2002, he married to Madam Tsang Yin Ha, the Plaintiff herein.  From about 18 March 2003, he started to work as an Assistant Foreman in China Overseas (Hong Kong) Limited.

4.Unfortunately, on 4 May 2003, at about 7:36 a.m., when the Deceased went to work by his motorcycle HW437 along Ma On Shan Road, he was hit from the back by vehicle GY7864 driven by the 1^st Defendant.  The Deceased was thrown up into the air and fell onto a construction site under a flyover.  A doctor at the Prince of Wales Hospital certified his death at 8:17 a.m. on the same day.  The autopsy report showed that he was killed by multiple injuries.  At the time of his death, he was 28 years old.

5.On 7 March 2006, the Plaintiff, in the capacity of the administrator of the estate of the Deceased, commenced the present proceedings against the registered owner and driver of GY7864.  By the order dated 10 April 2006, Motor Insurers’ Bureau of Hong Kong was joined in as 2^nd Defendant.

6.Further, on 15 May 2006 and 25 July 2006, interlocutory judgments on liability were entered by consent for the Plaintiff against the 2^nd Defendant and 1^st Defendant respectively with damages to be assessed.

7.I heard the assessment of damages on 23 and 24 April 2007.  Mr. Erik Shum of Counsel acted for the Plaintiff and Ms. Julia Lau of Counsel represented both Defendants.  Having heard from the parties, I reserved my judgment to be handed down.  I now do so.

The Evidence

8.Mr. Shum called for 2 witnesses: the Plaintiff and the younger sister of the Deceased.  I find them both honest and reliable.  Under cross-examination, their evidence remained unshaken.  On balance, I agree to accept that the followings.

(a)	The Deceased was a responsible son and brother.  He took care of his family, especially after the suicide of his elder brother.  He shouldered the financial responsibilities according to his abilities.  He paid $1,500 to each of his parents every month.  He also paid about $500 monthly to his sister to show his care.
(b)	He earned less than the Plaintiff, but as a husband, he purchased the matrimonial home in his own name.  He paid the mortgage and took a bigger share (70%) of the household expenses.  The fact that the Plaintiff sometimes helped to pay the mortgage instalments and other expenses did not affect the position that she was dependant on the Deceased.  In my view, the Plaintiff’s evidence of the household expenses and her monthly dependency in the sum of $1,696.00 [$5,936.00 – ($8,480.00 ÷ 2)] are to be accepted.
(c)	He was a man with mission and plan.  He was willing to work for lesser pay in order to get a job, as an Assistant Foreman, with better prospects.  He planned to study in the City University to catch up with his wife who had graduated in the Chinese University of Hong Kong.  On the other hand, he also quitted his job for some months so that he could arrange their wedding when the Plaintiff was too busy to do so.  During such period, he primarily relied on his savings.  At the time of his death, apart from the matrimonial home, he also maintained savings in bank and shares in the respective sums of about $5,600.00 and $48,000.00.

9.As to the parents of the Deceased, Ms. Lau kindly agreed that their witness statements were to be admitted as evidence without examination.  Both parties also agreed that the authenticity and admissibility of all the documents contained in Trial Bundle B were not challenged.

Bereavement

10.The parties agreed that this Court should award $150,000.00 for the statutory sum for bereavement.  I so order accordingly.

Pre-trial Loss of Dependencies

11.Ms. Lau did not dispute that the parents and the younger sister depended upon the Deceased.  As to the Plaintiff, on balance, I rule in favour of her for the dependency claim.  Therefore, the pre-trial dependency award is:

(a)	The Plaintiff: $1,696.00 x 48 months	$81,408.00
(b)	The Father: $1,500.00 x 48 months	$72,000.00
(c)	The Mother: $1,500.00 x 48 months	$72,000.00
(d)	The Sister: $500 x 48 months	$24,000.00
		$249,408.00

Pre-trial Loss of MPF

12.The parties had a minor difference over the claim of pre-trial loss of MPF.  However, to save time and costs, Mr. Shum agreed to accept the Defendant’s offer in the sum $25,850.00.

Post-trial Loss of Dependencies

13.As to post-trial loss of dependencies, both Counsel led me go through some authorities to show how this Court should apply the multiplier.  In my view, there is no fast and hard rule.  Each case depends on its own facts.  As long as the Court is conscious “when” he applies the multiplier, i.e. the time of death or the time of judgment, it really does not matter.  It is only a matter of preference rather than strict rule.

14.By taking into account of the evidence of the Deceased family members, including their ages at trial, health condition, marital status and background, in my judgment, multipliers of 15, 8, 10 and 8 are appropriate in the circumstances for the Plaintiff, the father, the mother and the sister.  Therefore, I award:

(a)	The Plaintiff: $1,696.00 x 180	$305,280.00
(b)	The Father: $1,500.00 x 96	$144,000.00
(c)	The Mother: $1,500.00 x 120	$180,000.00
(d)	The Sister: $500 x 96	$48,000.00
		$677,280.00

Loss of Accumulation of Wealth

15.The parties had quite a dispute as to the award for loss of accumulation of wealth.  Mr. Shum suggested $1,100,000.00 and Ms. Lau, $218,000.00.  Nonetheless, they did not dispute that the guiding principle for this assessment can be located in the Court of Final Appeal case, Lam Pak Chiu v Tsang Mei Ying [2001] HKLRD 193, at page 194:

“	(1)	A pattern of savings was not an absolute pre-condition to an award for loss of accumulation of wealth.  Although this would be the surest possible foundation for such an award, all s.20(2)(b)(iii) required was that the court be satisfied that, but for the act or omission which killed him, the deceased would have achieved an accumulation of wealth by the time that he would otherwise have died.  There might, in any given case be real prospects of an eventual accumulation of wealth to justify such an award.  For example, a relatively young married person with a strong sense of family responsibility would have strong prospects of achieving an accumulation of wealth at the end of an average life span, but their financial responsibilities might have prevented them from accumulating any wealth before an untimely death.
	(2)	In determining what would have happened but for the event giving rise to liability, the court was often engaged in pondering the well-nigh imponderable.  But the mere fact that an assessment was extremely difficult did not relieve the court of its duty, or deprive it of its ability, to make that assessment.”

16.To try my best to give a fair assessment to the Deceased in the circumstances, I note the following factors mentioned by Mr. Shum.  On balance, I agree that they are established by the evidence adduced by the Plaintiff:

(a)	The Deceased planned to study to upgrade himself.
(b)	He targeted to become a Foreman in the construction field.  By then, he would be able to earn not less than $17,000.00
(c)	He would continue to support his family members to such an extent as he could to show his affection and care.
(d)	He would also continue to pay the mortgage and shoulder a bigger share of the household expenses.

17.On the other hand, Ms. Lau in her closing submission reminded me that the young couple intended to have one or two child in 2 to 3 years’ time after the marriage.  As a responsible father, it was more likely than not that he would try his very best to be financially responsible for the maintenance of his child or children. I accept such proposition on balance of probabilities.

18.In my view, having taken into account of the above matters, I am of the view that a monthly sum of $2,500.00 with a multiplier of 15 is appropriate in the circumstances.  Hence, I award a sum of $450,000.00 under this head.

Funeral Expenses

19.It was not disputed that the funeral expenses was in the sum of $82,000.00.

Summary

20.To sum up, I award the Plaintiff damages as follows:

	FAO
(a)	Bereavement		$150,000.00
(b)	Pre-trial loss of dependencies		$249,408.00
(c)	Pre-trial loss of MPF		$25,850.00
(d)	Post-trial loss of dependencies		$677,280.00
			$1,102,538.00
	LARCO
(e)	Loss of accumulation of wealth	$450,000.00
(f)	Funeral expenses	$82,000.00	$532,000.00
			$1,634,538.00

Interest

21.Interest at half judgment rate from the date of accident is awarded to items (b), (c), (d) and (f) above.  Further, interest at 2% from the date of writ herein will be given to items (a) and (e).

Costs

22.There will be an order nisi that the Defendants shall pay costs of the Plaintiff in the assessment, including all costs reserved and Certificate of Counsel for hearings on 23 and 24 April 2007, on a party-and-party basis, High Court scale, to be taxed if not agreed.  The Plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

Mr. Erik Shum instructed by Messrs. Christine M. Koo & Ip for Plaintiff.

Ms. Julia Lau instructed by Messrs. Deacons for Defendants.