Pang Tai San v. Wan Tak Shing t/a Ken Kin Scoffloding Co

HCPI483/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 483 OF 2008

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Coram:  Master de Souza in Court

Date of Hearing:  13 May 2009

Date of Judgment:  13 May 2009

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J U D G M E N T

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Introduction

1.This is an assessment of damages arising out of a fatal accident claim.  The deceased, Pang Tung-ming, was a scaffolding worker when he fell from a height to his death on 13 July 2005.  He was then aged 23. 

2.He was not the only casualty as a fellow employee and scaffolder, Lee Ping-yiu, had met with a similar fate at the time.  It would appear from the evidence that their deaths were almost instantaneous.  Consequently, no claim for pain, suffering and loss of amenities has been sought in the present proceedings in respect of the deceased.

3.The claim has been prosecuted by the deceased’s father, Mr Pan Tai-san, now aged 54, as the personal representative of the estate of the deceased.  He also makes claim for loss of dependency.  In short, the Plaintiff sues in a dual capacity as the personal representative of the estate as well as for himself as a dependant of his late son.

4.No notice of intention to defend has been given by the Defendant.  On 23 September 2008, interlocutory judgment was therefore entered against the defendant for damages to be assessed.  In March of this year, the Defendant was made the subject of a bankruptcy order.  Before the commencement of today’s hearing, Master Hui, as the practice master, made an order in terms of a consent summons filed yesterday which, effectively, permitted the proceedings to proceed before me this morning.

5.Still by way of background, an employee’s compensation award totalling $906,918 was made in DCEC328/2008.  The defendant, for some unknown reason, was uninsured and, as I understand it, that compensation award has not been paid to the estate. 

6.A sad feature of this case is that any awards following today’s hearing is unlikely to be met by the Defendant.  In short, the exercise, when completed, would not in any way result in moneys in the pocket of the Plaintiff and the estate.  I now turn to the various heads of claim. 

Fatal Accidents Ordinance, Cap. 22 (FAO)

7.Under this head of claim, the Plaintiff, Mr Pang, seeks pre and post-trial loss of dependency for his own benefit.  Mr Pang has made one witness statement which he elaborated upon this morning.  Its contents have been verified as true and correct.  There being no evidence to suggest that his evidence is otherwise than reliable and truthful, there is no hesitation on my part to accept his evidence in full and to act thereupon for the purpose of assessment.

Pre-trial Loss of Dependency

8.Mr Pang views his son as having been a filial individual.  There is evidence from him that his son lived frugally, neither smoked nor drank, and was enjoying good health at the time of his demise.  He lived with his father, the Plaintiff, taking evening meals and sleeping at home and rarely, it would seem, going out for entertainment, although he did have a girlfriend who has filed a statement to the investigating authorities, confirming the number of days that the deceased was working at the time of his death. 

9.According to the Plaintiff, the deceased became an apprentice scaffolder in around year 2000.  At the time, he was earning about $500 per month.  When he became fully qualified and attained the rank of master scaffolder, he was able to command a daily wage of $800.  There is evidence that the deceased was able to work a minimum of 24 to 26 days a month, resting only on Sundays, at about the time of his death.  When he was an apprentice, he worked, but about 13 days a month.

10.The Plaintiff claims to be the sole dependant, he having separated from his wife some years ago.  I believe that the marriage was dissolved.  The Plaintiff said that his son would give him, on average, $4,000 a month for his maintenance.  The Plaintiff is currently unemployed.  He says that his health is not particularly good and being in his mid-50s, work is difficult to find.  In order to reduce his expenses, he spends a considerable number of days in China where, presumably, living expenses are less.  Since the Plaintiff’s divorce, the deceased, who was then aged 7, had resided continuously with him.  To that extent, the Plaintiff is therefore in a position to comment on the character, personality and spending pattern of the deceased.  The Plaintiff said that he would receive $4,000 in cash from his son at the commencement of each month, which he used on himself.

11.I have no hesitation in holding that the Plaintiff did benefit from this cash contribution from his son.  From the date of the accident,  13 July 2005 to the date of the trial, that is 13 May 2009, 46 months have elapsed.  For pre-trial loss of dependency, a sum of $184,000 has been claimed.  That is simply a figure arrived at taking a monthly multiplicand of $4,000 times 46 months.  That is the amount that I have no difficulty awarding under the head of pre-trial loss of dependency.

Post-trial Loss of Dependency

12.Ms Tjia, very helpfully, in her written submissions, adumbrated a number of cases indicative of the range of multipliers that are pertinent to this exercise.  She submits that 16 years’ purchase would be appropriate given the age of the deceased at the time of his death.  The cases cited are:  Chang Wan Ying v Wong Ho Bun, HCA5868/1985, unreported, 14 March 1986; Chan Kit Ching v Lee Yuk Sui, HCA4249/1982, unreported, 26 November 1982; Ip Ling v Chan Yuen Ping & Another, HCA10420/1982, unreported, 27 March 1986; and Wong Po Ling & Another v Dragages et Travaux Publics and Penta-Ocean Construction Company Limited, HCPI593/1999, unreported, 20 September 2000.

13.Ms Tjia claims, on behalf of the Plaintiff, post-trial loss of dependency of $584,000, being a monthly dependency of $4,000 times 16 times 12, less the 46 month pre-trial period for which assessment has previously been made. 

14.I also am prepared to accede to this award and I so order, largely upon the basis of the evidence that the deceased was filial, was not spendthrift, was entirely responsible and, apparently, on the father’s evidence, would likely have continued to look after his father indefinitely but for the sad turn of events. 

15.For bereavement, under the FAO, a sum of $150,000 will be awarded.  That is the usual measure of damages for bereavement.  This quantum is allowed.

16.I now turn to the remaining claims.  These are brought under the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (LARCO).  The first head of damages in this respect is loss of accumulation of wealth. 

17.But for his death, it seems that this deceased would have continued to work as a master scaffolder.  As a highly skilled worker in the construction site, it is likely that the deceased would continue to command a high salary, possibly increasing in the future as wages generally increase.  Income statistics from the Census and Statistics Department have been included in the bundle, suggesting that in the 12-month period prior to the accident, the average daily wage of a bamboo scaffolder was in excess of $1,000.  However, for present purposes, Ms Tjia asks the Court to adopt the $800 daily wage which seems most fair and reasonable.  I will continue to adopt that daily wage of $800 for the purpose of calculation of any award to be made under this head of damage.

18.Ms Tjia also suggested that one should take a 22-day working month, although the Plaintiff suggested that the deceased could work anything up to 26 days a month.  It is possible that the maximum of 26 working days may not be achievable over time, so adopting a mean of 22 working days a month for calculation would be, as I have said, reasonable and fair.

19.The Plaintiff has given evidence that the deceased son would spend about $6,000 on himself every month.  Upon the basis of a working month of 22 days and taking a daily wage of $800, the deceased would have been earning $17,600 per month.  From this total monthly wage must be deducted the $6,000 which the deceased expended on himself and the $4,000 which he gave to his father, the Plaintiff.  That would leave a balance of about $7,600 per month, on Ms Tjia’s calculation based on the evidence.  This figure I adopt as well. 

20.There is no meaningful bank statements supplied to prove a definitive pattern of savings that the deceased had practised.  However, there is evidence that he has purchased an insurance policy in May of 2004.  So he did at least make some financial planning for the future.  Being a frugal individual, it is likely that the deceased would have, over the rest of his natural working life, made further savings.  On the authority of Lam Pak Chiu v Tsang Mei Ying [2001] HKLRD 193, the absence of evidence of actual savings by the deceased does not preclude an award being made under this head.  A multiplier of 17 has been urged by reference to Lam Yau v Shun Shung Construction & Engineering Company & Another, HCA1560/1990, unreported, 6 August 1992, Wong Mee Wan v Kwan Kin Travel Service Limited (1993) HKLY 473, Tang Kwan Hop v Fung Kam Shing & Others HCPI183/2001, and Cheung Yuk Shiu v Registrar General (1990) HKLY 514.

21.Taking the monthly residue of $7,600 as I have found earlier, and adopting a multiplier of 17 years’ purchase, less the 46 month pre-trial period, that should produce a figure of $1,200,800.  That is the award that I shall allow under this head.

22.I now turn to funeral expenses.  These have two components, the larger being the $28,318 paid to the funeral company and fully documented, and a smaller $5,000 claim which is unsupported by documentation.  The $5,000 expense is not an unreasonable amount.  The Plaintiff testified that that went towards the purchase of paper offerings, such as a paper motorcycle, for the son.

23.I allow the funeral expenses as claimed in full.  In other words, there shall be an award under this head of $33,318.

24.The awards for pre-trial loss of dependency and special damages shall carry interest at half judgment rate from the date of the deceased’s death to the date of judgment.  There shall be interest on the award for bereavement at the prevailing rate of interest payable on suitor’s funds from the date of the deceased’s death.

Summary of Quantum

25.I award the following sums. 

Under the FAO:
(1)  Pre-trial loss of dependency	$184,000
(2)  Post-trial loss of dependency	$584,000
(3)  Bereavement	$150,000
LARCO:
(4)  Loss of accumulation of wealth	$1,200,800
(5)  Funeral expenses	$33,318
Total damages allowed:	$2,152,118

26.In addition, there shall be costs to the Plaintiff with certificate for counsel, such costs to be taxed if not agreed and shall include any costs reserved in respect thereof. 

Representations:

Ms Josephine Tjia, instructed by Messrs Yip, Tse & Tang, for the Plaintiff

Defendant, in person, absent