Ting Kam Yuen v. Cheung Wing Kin and Another

HCPI 288/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 288 OF 1996

BETWEEN

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Coram : Before Master Marlene Ng in Court (open to the public)

Date of Hearing : 1 March 2011

Date of Written Submissions from the Plaintiff : 11 March 2011

Date of Written Submissions from the 1^st Defendant : 22 March 2011

Date of Handing Down Judgment : 13 April 2011

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ASSESSMENT OF DAMAGES

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I.  BACKGROUND

1.On or about 15 March 1993, there was a collision upon the high seas between a fishing vessel and a container ship (“Accident”).  As a result, Tong Kwok Fong (“Deceased”), a Mainland Chinese fisherman employed as a seaman on board the fishing vessel, was lost at sea.  The Accident was caused by the negligence, breach of common duty of care, breach of statutory duty and/or breach of contract of employment by Cheung Tak Ming who was the owner, occupier and master of the fishing vessel.

2.On 14 March 1996, the Plaintiff commenced the present proceedings against Cheung Tak Ming as the 1^st Defendant and the personal representative of the estate of his wife Chau Tai Ho (who was also lost at sea as a result of the Accident) as the 2^nd Defendant.

3.Cheung Tak Ming was in fact killed as a result of the Accident. On 4 March 1997, the Plaintiff amended the Writ of Summons to sue Cheung Sai Ming as the personal representative of the respective estate of Cheung Tak Ming, deceased and Chau Tai Ho, deceased as the 1^st and 2^nd Defendants.

4.On 5 August 1997, leave was granted to the Plaintiff re-amend the Amended Writ of Summons for Cheung Sai Ming to act as the representative (and not the personal representative) of the respective estate of Cheung Tak Ming, deceased and Chau Tai Ho, deceased as the 1^st and 2nd Defendants. At that time, Cheung Sai Ming was legally represented.

5.There was a hiatus in the proceedings until the Statement of Claim that was filed on 20 October 1999.  On 23 December 1999, the 1^st and 2^nd Defendants filed their Defence. Nothing happened until January 2001 when the parties filed their respective List of Documents, and then until April 2001 when they filed their respective witness statements.  Again, there were no developments until 26 March 2002 when a Notice to Act in Person was filed on behalf of the 1^st and 2^nd Defendants.

6.On 31 July 2002 and 15 May 2003, the Plaintiff filed the Statement of Special Damages and the Supplemental List of Documents respectively.  Then, nothing happened for almost 4 years until the Checklist Review (“CLR”) hearing on 17 April 2007, which was adjourned to 15 June 2007 when Master B Kwan inter alia directed the Plaintiff to serve the Revised Statement of Damages, and further directed the 1^st and 2^nd Defendants to serve their Answer thereto.  Master B Kwan also ordered the Plaintiff to set the case down for trial by 15 October 2007.

7.On 25 July 2007, solicitors came on the record for the 1^st and 2^nd Defendants. On 3 April 2008, Ting Kam Yuen was appointed to represent the estate of the Deceased for the purpose of the present action.  On 15 April 2008, Cheung Wing Kin (“Mr Cheung”) was appointed in substitution of Cheung Sai Ming to represent the respective estate of Cheung Tak Ming, deceased and Chau Tai Ho, deceased.

8.On 27 June 2008, interlocutory judgment was granted in favour of the Plaintiff on behalf of the estate of the Deceased and/or on behalf of his dependants against the 1^st Defendant for damages under Law Amendment Reform (Consolidation) Ordinance Cap.23 (“LARCO”) and the Fatal Accidents Ordinance Cap.22 (“FAO”) to be assessed “with interest on the damages for bereavement at the rate for the suitor’s funds (ie 2% per annum) from the date of death to the date of the judgment and interest on all pre-trial losses at half judgment rate from the date of accident to the date of judgment” (“Judgment”).

9.On 26 August 2009, the Plaintiff filed the Revised Statement of Damages. On 9 October 2009, the 1^st and 2^nd Defendants filed the Answer thereto.

10.On 6 January 2010, the Plaintiff was granted leave to discontinue the action against the 2^nd Defendant.  On 9 February 2010, Mr Cheung filed Notice to Act in Person on behalf of the 1^st Defendant.  Thereafter in July 2010, the parties filed Supplemental Lists of Documents. Although the Plaintiff had filed the witness statements of Ng Fo Tai, Ng Fong Ying, Tong Kam Kwan and Tong Sheung Lam on 17 April 2001 (“Previous Statements”), he decided not to call them as witnesses for the purpose of the assessment of damages.  At the CLR hearing on 2 September 2010, leave was granted to the Plaintiff to serve witness statement as to quantum of Tong Man Chiu (“Mr Tong”) who is the younger son of the Deceased.

11.However, the Plaintiff has included the Previous Statements in the hearing bundle for the assessment of damages (“Bundle”).  In light of the above matters, the Plaintiff’s counsel, Mr Hingorani, has no objection for (and I have so ordered at the hearing) the Previous Statements to be struck out and removed from the Bundle.

12.On 17 April 2001, the 1^st and 2^nd Defendants filed the witness statement of Cheung Sai Ming, but pursuant to my order dated 15 July 2010 only paragraph 13 of such witness statement which is concerned with the issue of quantum is to be adduced as hearsay evidence at the assessment of damages.  Apart from such hearsay evidence, the 1^st Defendant does not have any live witness as to quantum.

13.However, the whole of the witness statement of Cheung Sai Ming has been included in the Bundle.  For the avoidance of doubt, at the assessment hearing I have directed that only paragraph 13 of such witness statement be admissible as hearsay evidence and the rest of such witness statement be struck out from the Bundle.

14.Pursuant to my directions made at the CLR hearing on 2 September 2010, the Plaintiff and the 1^st Defendant have lodged their written agreement on the average wages of Mainland Chinese fisherman working as seamen in Hong Kong from 1993 to date, and such information is adduced as agreed evidence at the assessment of damages.

15.On 18 November 2010, retrospective leave was granted for the Plaintiff to file and serve his Re-Revised Statement of Damages, and directions were given for the 1^st Defendant to file and serve the Answer thereto.  The Re-Revised Statement of Damages and the Answer thereto were respectively filed on 9 November and 9 December 2010.

16.The assessment of damages came before me on 1 March 2011 (“Hearing”). The Plaintiff has only 1 witness, ie Mr Tong, who adopts his witness statement as part of his evidence-in-chief.  The 1^st Defendant, represented by Mr Cheung acting in person, has no live witness.

17.At the commencement of the Hearing, Mr Hingorani submitted various documents in relation to the Plaintiff’s claim under LARCO to the court and to Mr Cheung (“New Documents”), and orally applied for leave to adduce such documents at the Hearing.  Mr Hingorani acknowledged there was inordinate delay in making such application, and Mr Cheung on behalf of the 1^st Defendant objected to such late application.  After hearing submissions, I dismissed the application and reserved my reasons.  However, in the course of the Hearing, Mr Hingorani on behalf of the Plaintiff abandoned the claim under LARCO, so there is no need for me to hand down reasons for rejecting the New Documents.

II.  DECEASED

18.According to Mr Tong, the Deceased was born in 1954 and was about 39 years old when he was lost at sea.  At the time of the Accident, he was employed by Cheung Tak Ming as a seaman on board the latter’s fishing vessel.  There is no dispute that (a) the earnings of Mainland Chinese fishermen working as seamen in Hong Kong in 1993 were HK$2,500.00 per month, and (b) Cheung Tak Ming provided meals and accommodation for the Deceased when he was at work. The Deceased visited his family in Mainland China about twice a year.

19.It is common ground that had the Deceased been alive and continued to work as a seaman in Hong Kong, his average monthly income would have increased to HK$2,900.00 in 2001-2004, HK$3,200.00 in 2005-2009 and HK$3,500.00 in 2010.

III.  FAO – BEREAVEMENT

20.I allow this head of claim in favour of the Deceased’s widow Ng Fong Ying at the statutory sum of HK$150,000.00.

III.  FAO – LOSS OF DEPENDENCY

21.The certificates by 台山市赤溪鎮銅鼓村民委員會 dated 17 September 2008 and 19 September 2009 confirm that the Deceased’s household in Mainland China between 2002 and 2008 comprised of his grandmother Ng Fo Tai, his father Tong Kam Kwan, his widow Ng Fong Ying, his elder son 唐文戈 and his younger son Mr Tong.  According to Mr Tong, the Deceased also had a daughter (ie Mr Tong’s elder sister) Tong Sheung Lan, but she was married in 2002 and left the household.

22.At the time of the Accident, the Deceased’s grandmother Ng Fo Tai was 79 years old and had no income. She lived at the Deceased’s household in Mainland China and was dependent on the Deceased.  She passed away on 27 February 2007.

23.The Deceased’s father Tong Kam Kwan was 60 years old at the time of the Accident.  At that time, he did some handicrafts (eg making spades and baskets) for the family’s own use because the Deceased’s wife Ng Fong Ying carried out farming work.  But he had no income and was dependent on the Deceased.

24.At the time of the Accident, the Deceased’s wife Ng Fong Ying was 39 years old.  According to Mr Tong, she did casual work in the village, eg farming as well as cooking and washing dishes at the village food shop or hall, and made average monthly earnings of RMB1,000 which she put aside as family savings for “emergency” use.  In fact, just before the Accident, the family decided to build a new family house.  It was eventually built between August 1993 and February 1994 at the cost of RMB170,000 of which RMB90,000 was borrowed from friends and the remaining balance of RMB80,000 came from the family savings.  According to Mr Tong, such savings were from Ng Fong Ying’s earnings from her farming work whilst the Deceased’s contribution was used to defray household expenses.

25.The Deceased’s elder son唐文戈 was born on 29 August 1975.  He was just shy of 18 years when the Accident happened. He finished junior middle school in 1991.  In the following year, he followed the Deceased’s footsteps and started to work as a fisherman in Mainland China. As a newcomer to fishing work, he would not be making as much as RMB3,000 per month as he did in later years.  His then income (which was unstable) was about RMB2,000 per month.  When he worked as a fisherman, he lived away from home and only returned every few months to stay at the Deceased’s household in Mainland China for about a week or 10 days.  He would also accumulate some of his earnings, and whenever he returned home he would give such accumulated earnings to his family.  After the Deceased passed away, he contributed the whole of his earnings to his family.  

26.At the time of the Accident, the Deceased daughter Tong Sheung Lan (who was born on 16 December 1977) was 15 years old.  She finished junior middle school when she was about 16 years old.  Thereafter, she stayed at home until she was 17-18 years old. She then left the household to work outside the village upon obtaining her adult identification document.  As explained above, she was married in 2002 and left the Deceased’s household.

27.At the time of the Accident, the Deceased’s younger son Mr Tong was still a student.  He was born on 17 March 1980 and 13 years old at the time of the Accident.  He started to attend boarding school in September 1993. According to the certificate by 台山市赤溪鎮銅鼓村民委員會dated 9 April 2009, the tuition and board fees for Mr Tong to attend (a) 3 years of junior middle school from 1993 to 1996 were RMB8,850, (b) 3 years of senior middle school from 1996 to 1999 were RMB17,300, and (c) 3 years of university from 1999 to 2002 were RMB51,100.  Such certificate was prepared by 台山市赤溪鎮銅鼓村民委員會 which verified the information from records kept/produced by Mr Tong in respect of (i) monies given to him by his mother Ng Fong Ying and (ii) the expenses for his schooling during those years.

28.According to the Re-Revised Statement of Damages, at the time of the Accident, the Deceased’s average contribution to the monthly living expenses of his household in Mainland China was about HK$1,550 and his monthly provision for Mr Tong’s school fees and board were HK$324.50, so his average overall monthly contribution was HK$1,874.50 (which was about 75% of his monthly income).

29.But there is no direct evidence from Mr Tong or otherwise as to (i) the Deceased’s monthly contribution to and (ii) the pre-Accident household expenses of the Deceased’s household in Mainland China.  I am unable to draw any assistance from the following:

(a)                 according to the certificate by台山市赤溪鎮銅鼓村民委員會 dated 17 September 2008, the then average monthly living and medical expenses of each member of the Deceased’s household in Mainland China was RMB1,500;

(b)                 according to the certificate by 台山市赤溪鎮銅鼓村民委員會 dated 19 April 2009, the then average living and medical expenses of each member of the Deceased’s household in Mainland China was RMB44 daily or RMB1,320 monthly.

30.Mr Hingorani submits that notwithstanding the absence of direct evidence, the average monthly household expenses at the time of the Accident should be about 75% of the Deceased’s income, ie HK$2,500 x 75% = HK$1,875.  He refers to Harris v Empress Motors Ltd [1984] 1 WLR 212 and Ho Pang Lin and Wong Hop Hing, co-administrators of the estate of Wong Hup Yim, deceased v Ho Shui On & anor HCPI 4450/1993, DHCJ Jones (unreported, 30 August 1994) in support of such proposition.

31.In Harris at pp.216-217, O’Connor LJ advocated the modern practice of deducting a percentage from the net income figure to represent what the deceased would have spent exclusively on himself, and held that where there were children the deduction should be 25% unless there was striking evidence to make the conventional figure inappropriate.  In Ho Pang Lin and Wong Hop Hing, co-administrators of the estate of Wong Hup Yim, deceased, DHCJ Jones acknowledged the reasoning behind the Harris approach, ie that a family should be regarded as a dependent unit and its dependency should therefore be assessed as a whole, and adopted the conventional deduction of 25% where the deceased’s household in that case comprised his widow, 4 children and his mother.

32.But I note that Seagroatt J when considering the principles in relation to the assessment of the dependency of the individual dependents in Tsang Mei Ying v. Lam Pak Chui[1999] 2 HKLRD 807, 811 did not approve the use of a conventional percentage:

“…… many items of dependency are common to the family whether there are children or not, and, if there are, when they leave home and the picture of dependency in other respects changes. The common items remain part of the dependency picture. Examples of these are rent, utilities (though these may vary according to exceptional use) and other fixed payments. Moreover as some dependants cease to be such, the dependency of those remaining in the household often increases. The modern practice is to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. These percentages tend to be used 'unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts' (per O'Connor LJ in Empress v. Harris Motors ...... The flexibility of the approach and the need to have regard to the facts of the case and the evidence adduced in relation to dependency was illustrated by Beldam LJ in Owen v. Martin (1992) PIQR Q 151:

“No doubt there will be many claims under the Fatal Accidents Acts where parties agree that a conventional proportion is appropriate.  I do not, of course, suggest that in arriving at the extent of the financial provision made by the deceased the court is bound to base its assessment precisely on the percentage of net earnings disclosed by sums spent for the benefit of dependants but the court is not entitled to cast aside altogether evidence which shows the proportion of the deceased's income actually spent for the dependants' benefit during his lifetime and to substitute a figure however conventional or appropriate in other cases.”

It is not appropriate to calculate dependency on a simple equal mathematical division amongst all dependants of the sum given by the husband to his wife for the upkeep of the family home, its outgoings, and the general necessities of life.  This is a wholly artificial approach and is a practice to be deprecated. It is not conducive to a calculation which is fair to either party.”

33.In the present case, in the Deceased’s household in Mainland China, both his wife Ng Fong Ying and his elder son 唐文戈 were working and earning income at the time of the Accident.  According to Mr Tong (whose evidence I accept), Ng Fong Ying’s income went to family savings reserved for “emergency” use and to partially pay for the cost of building the new family house whilst the Deceased’s income was used to defray regular household expenses.  Further, 唐文戈 was new to the fishing trade, so his income was unstable even though he made about RMB2,000 per month.  Bearing in mind that the family would have to repay loans from friends for building the new family house, I find that had the Deceased been alive his family would be essentially dependent on his contribution for paying the household expenses whilst the less stable income from 唐文戈 (which he brought home every few months) and Ng Fong Ying’s income would be (a) put away as family savings, (b) used to pay for the new family house whether by contributing to the building cost or by repaying loans from friends, and/or (c) used to pay for non-recurring “emergency” expenditure.

34.The Deceased did not have to pay for accommodation and meals when he worked in Hong Kong.  Although he would have retained a portion of his earnings for his personal expenses and for travelling expenses to visit the family in Mainland China twice a year, I find he would have been thrifty in his expenditure given that he had a large household to support.  Mr Tong’s evidence confirms that the Deceased was a caring husband, son and father.  I am persuaded that had the Deceased been alive, he would have continued to contribute the bulk of his income for the household expenses in Mainland China even after Tong Sheung Lan left home upon her marriage and after Mr Tong finished his education.  In my view, it is unlikely that the Deceased would have reduced his contribution when his children gradually became independent, especially when he would have had the comfort of family savings from Ng Fong Ying’s income. On an overall basis, there is no striking evidence to render inappropriate the adoption of the conventional figure of 75% of the Deceased’s monthly income as reasonable reflection of his average contribution to the overall expenses of his household in Mainland China, ie HK$2,500 x 75% = HK$1,875.00.

35.Mr Hingorani next submits that the appropriate multiplier for a male aged about 39 years at the date of death is between 12 and 14, and he proposes (and I agree) to adopt 13 as the applicable multiplier (see Li (otherwise spelt as Lee) Ting Chun & anor v The Personal Representative of Li (otherwise spelt as Lee) Ting Fai, Deceased HCA 1257/1980, Rhind J (unreported, 20 October 1980) and Wong Sin Lam suing through his next friend and wife Bong Siat Fa v Kuen Fung Construction Ltd & ors HCPI 1286/1999, Stone J (unreported, 20 December 2002)).  A multiplier of 13 means that had the Deceased been alive, he would have worked until March 2006.  So Mr Hingorani concedes that the total pre-trial dependency would have ceased by March 2006, and there is no claim for loss of future dependency.

36.The Deceased’s income would have increased to HK$3,200 in 2006, and the then monthly dependency of the Deceased’s household in Mainland China would have increased to HK$3,200 x 75% = HK$2,400.  Thus, the median monthly and total pre-trial dependencies of the Deceased’s household in Mainland China are respectively HK$2,137.50 (ie [HK$1,875 + HK$2,400] ÷ 2) and HK$333,450 (ie HK$2,137.50 x 13 x 12 months).

37.On the evidence before me, the dependants of the Deceased were his grandmother Ng Fo Tai, his father Tong Kam Kwan, his widow Ng Fong Ying, his daughter Tong Sheung Lan and his younger son Mr Tong.  Since it is not appropriate to adopt a conventional percentage for their respective dependency, it is necessary to keep in mind the following milestones during the pre-trial dependency period :

(a) for 6 months from the death of the Deceased in March 1993 to Mr Tong starting to attend junior middle school in September 1993, the household comprised 5 persons (Ng Fo Tai, Tong Kam Kwan, Ng Fong Ying, Tong Sheung Lan and Mr Tong);

(b) for 27 months thereafter until December 1995 when Tong Sheung Lan turned 18 years and left the household to work outside the village, the household comprised 4 persons (Ng Fo Tai, Tong Kam Kwan, Ng Fong Ying and Tong Sheung Lan);

(c) for 9 months thereafter until Mr Tong started to attend senior middle school in September 1996, the household comprised 3 persons (Ng Fo Tai, Tong Kam Kwan and Ng Fong Ying);

(d) for 36 months thereafter until Mr Tong started to attend university in September 1999, the household comprised 3 persons (Ng Fo Tai, Tong Kam Kwan and Ng Fong Ying);

(e) for 33 months thereafter until Mr Tong completed his university education in June 2002 (and Tong Sheung Lan got married), the household comprised 3 persons (Ng Fo Tai, Tong Kam Kwan and Ng Fong Ying);

(f) for 45 months thereafter until expiry of the dependency multiplier in March 2006, the household comprised 3 persons (Ng Fo Tai, Tong Kam Kwan and Ng Fong Ying).

38.Had the Deceased been alive, during the period from September 1993 to June 2002, Mr Tong would have received the benefit of not only his share of the household expenses when he stayed at home but also his tuition and board expenses.  His average monthly tuition and board expenses for his middle school and university years are as follows:

(a) junior middle school: RMB8,850 ÷ 3 years ÷ 12 months = RMB245.83 or HK$230.70 (according to the exchange rate of RMB106.56 to HK$100 being average exchange rate for September 1999 quoted by the State Administration of Foreign Exchange (“Rate”), which rate was agreed by the parties to be the applicable exchange rate);

(b) senior middle school: RMB17,300 ÷ 3 years ÷ 12 months = RMB480.56 or HK$450.98 at the Rate;

(c) university: RMB51,100 ÷ 33 months = RMB1,548.48 or HK$1,453.15 at the Rate.

39.The Deceased’s grandmother Ng Fo Tai and his father Tong Kam Kwan having no income were wholly dependent on the Deceased.  Although the Deceased’s wife Ng Fong Ying was working at the time of the Accident and made earnings of about RMB1,000 per month, her earnings went into the family savings whilst the Deceased’s income was used to defray the family household expenses, so she was also wholly dependent on the Deceased.  In the circumstances, the pre-trial dependency for each of Ng Fo Tai, Tong Kam Kwan and Ng Fong Ying is HK$80,984.82 with breakdown as follows:

(a) HK$2,137.50 x 6 months ÷ 5 persons = HK$2,565;

(b) (HK$2,137.50 – HK$230.70) x 27 months ÷ 4 persons = HK$12,870.83;

(c) (HK$2,137.50 – HK$230.70) x 9 months  ÷ 3 persons = HK$5,720.40;

(d) (HK$2,137.50 – HK$450.98) x 36 months ÷ 3 persons = HK$20,238.24;

(e) (HK$2,137.50 – HK$1,453.15) x 33 months ÷ 3 persons = HK$7,527.85;

(f) HK$2,137.50 x 45 months ÷ 3 persons = HK$32,062.50.

40.I note that the medical expenses of the Deceased’s widow Ng Fong Ying and his father Tong Kam Kwan have increased over the years.  According to the Re-Revised Statement of Damages, Ng Fong Ying underwent an operation in December 2000 in relation to her kidney stones which cost around HK$3,000.00, but there is no evidence of such operation or cost before me. As evidenced by the certificates by台山市赤溪鎮銅鼓村民委員會 dated 19 April 2009, Ng Fong Ying received medical treatment and operation for her womb cancer in December 2001 for a total cost of RMB10,244.33.  According to the certificate by台山市赤溪鎮銅鼓村民委員會 dated 19 April 2009, Tong Kam Kwan received treatment and underwent operation for knee injury in December 2003 in the sum of RMB9,796.50.

41.However, Mr Hingorani has not asked for these medical expenses to be taken into account in calculating Ng Fong Ying’s and Tong Kam Kwan’s respective dependency on the Deceased (with the possible consequence of reducing the dependency of the other dependants on the Deceased).  I bear in mind that by 2001 both唐文戈and Tong Sheung Lan were working, and by 2003 all 3 children would no longer have been dependent on the Deceased.  In my view, given the family tradition of using the Deceased’s contribution to defray household expenses and putting aside Ng Fong Ying’s income for family savings and “emergency” use, I am of the view that had the Deceased been alive, his income contribution would still have been used for household expenses and the “emergencies” arising from the medical expenses for Ng Fong Ying and Tong Kam Kwan would have been paid out of the family savings or contribution by the children.  In the circumstances, I agree with Mr Hingorani that the apportionment of the dependencies in favour of Ng Fong Ying and Tong Kam Kwan should be as set out in paragraph 39 above.

42.As for Tong Sheung Lan, she would have been wholly dependent on the Deceased from the date of the Accident until she left home to work.  Her pre-trial dependency is HK$15,435.83 with breakdown as follows:

(a) HK$2,137.50 x 6 months ÷ 5 persons = HK$2,565;

(b) (HK$2,137.50 – HK$230.71) x 27 months ÷ 4 persons = HK$12,870.83.

43.As for Mr Tong, he would have been wholly dependent on the Deceased from the date of the Accident until he completed his university education in June 2002.  His pre-trial dependency is HK$75,059.37 with breakdown as follows:

(a) HK$2,137.50 x 6 months ÷ 5 persons = HK$2,565;

(b) middle school tuition and board fees of RMB26,150 (ie RMB8,850 + RMB17,300) or HK$24,540.17 at the Rate;

(c) university fees of RMB51,100 or HK$47,954.20 at the Rate.

IV.  PAIN, SUFFERING AND LOSS OF AMENITIES

44.Mr Hingorani submits that the Deceased was lost at sea and that he would have suffered great pain and suffering from drowning or exposure to the elements.  He proposes an award of HK$50,000.00 for pain, suffering and loss of amenities.

45.In support, Mr Hingorani refers to Wong King Tai, the administratrix appointed by order to represent the estate of Wong Tak Luk, deceased v Lau Ka Kui & anor HCPI 488/1996, DHCJ de Souza (unreported, 24 November 1998) in which the deceased suffered fatal injuries in a traffic accident. He was admitted to the hospital in a semi-conscious state and emergency surgeries were done.  He never regained consciousness and eventually died 12 days later.  It was accepted that the deceased would have some pain and suffering, but his awareness was lessened due to his mental state and such pain and suffering lasted only briefly.  An award of HK$30,000.00 was made to reflect “the fact of deprivation of the ordinary experiences and amenities of life and a degree of pain and suffering that …… he would have experienced before his operation” (see also Wong Chin Ying (administratrix of the estate of Cheung Yeuk Hang, deceased) v Lam Ping Fung [1999] 3 HKLRD 190, 193-194).

46.The difficulty in the present case is that apart from being lost at sea there is paucity of evidence as to how the Deceased met his end.  Mr Hingorani submits that the Deceased would have been in the water and would have strived to save his own life, and there would be considerable pain and suffering during that struggle which deserve an award of damages.  However, there is simply no evidence of such struggle, and it is unknown whether the Deceased was killed instantly as a result of the collision before falling into the sea or whether he eventually drowned or met any other unfortunate end.  It is not known whether he remained conscious or semi-conscious, and if so for how long.  Much as I sympathise with the plight of the Deceased, I am not persuaded that the Plaintiff has established on the balance of probabilities any justifiable basis for a claim for damages for pain, suffering and loss of amenities.

V.  FUNERAL EXPENSES

47.In the Re-Revised Statement of Damages, the Plaintiff claims for a sum of HK$2,000 being funeral expenses for the Deceased (ie costs of the headstone and memorial services). Mr Hingorani has abandoned such claim at the Hearing.  However, the Plaintiff claims for the cost of the headstone and funeral expenses of the Deceased’s grandmother Ng Fo Tai in the sum of HK$23,600.00 on the basis that the Deceased would have paid for such expenses had he been alive.

48.Ng Fo Tai passed away on 27 February 2007. Had the Deceased been alive, he would have retired by March 2006 and would have had no income by time Ng Fo Tai died.  There is no evidence that the Deceased would have made any or any respectable savings during his working life.  After all, the Plaintiff’s case is that apart from his personal expenses the Deceased contributed the rest of his income to defray family household expenses in Mainland China whilst his wife’s income would be put aside as family savings and for “emergency” use. Mr Hingorani submits that such savings would have been used for repayment of loans from friends for building the new family house so that the Deceased would have paid for Ng Fo Tai’s funeral expenses.  But it should not be forgotten that by 2007 the Deceased’s sons were both working and contributing their income to the family.  In my view, had the Deceased been alive, it would have been more probable that Ng Fo Tai’s funeral expenses and/or repayment of the loans for the family house would have been paid out of family savings from Ng Fong Ying’s earnings and/or from contributions by the Deceased’s children rather than from what notionally would have been the past earnings of the Deceased.  I am not persuaded that the Plaintiff has established on the balance of probabilities that the 1^st Defendant should be liable for the funeral expenses of Ng Fo Tai.

VI.  INSURANCE

49.According to paragraph 13 of the witness statement of Cheung Sai Ming, it is said that on/about 23 August 1993 insurance compensation in the sum of RMB11,520 and gratuity allowance in the sum of RMB8,480 were paid to the families and/or dependants of the Deceased allegedly in full and final settlement of the claim in these proceedings.

50.The certificate by 深圳市港漁實業公司 dated 12 March 1997 states that on 29 January 1993 shipowner Cheung Tak Ming through深圳市港漁實業公司 handled the procedures for employing the Deceased, and the three parties being the shipowner, the fisherman and the agency signed “僱用境內漁工合同書”, which was approved by the relevant government department in Shenzhen.  The certificate goes on to state that as a result of the Accident, the insurer paid out the compensation in the sum of RMB11,520 on 29 July 1993, and the agency paid to the Deceased’s family additional gratuity allowance in the sum of RMB8,480, thus a total sum of RMB20,000 was paid by the agency to 廣東省台山市駐深圳市勞動管理工作組 for onward payment to the Deceased’s family.  Hence, “此案一切賠償責任已終結”.

51.The payment of compensation in the sum of RMB11,520 was evidenced by a 中國人民保險公司深圳分公司僱主險賠款收據 dated 29 July 1993 signed by 深圳市港澳流動漁民服務公司, which company by such receipt “並承認關於該出險案之一切賠償責任已終了，立此存正”.  On 23 August 1993, a receipt was given on behalf of廣東省台山市駐深圳市勞動管理工作組confirming receipt of the sum of RMB20,000.

52.Mr Cheung for the 1^st Defendant submits that the aforesaid total sum of RMB20,000 was a form of compensation paid to the Plaintiff by the 1^st Defendant, so any damages that may be awarded in favour of the Plaintiff against the 1^st Defendant should be reduced by such sum.

53.The Plaintiff argues that the receipt for payment of the aforesaid total sum of RMB20,000 appears to be in respect of the proceeds of some sort of policy of insurance and not signed by any of the Plaintiff’s family members, and there is no indication that the payment of RMB20,000 referred to in the receipt was in full and final settlement of the Plaintiff’s common law claim.  Further, the retrospective certificate dated 12 March 1997 is also not said to be in full and final settlement and not signed by any of the Plaintiff’s family members. In any event, insofar as the receipt is evidence of payment of the proceeds of a policy of insurance that appears to be payable on death, it is trite law under section 20(2)(b)(i) of LARCO that such benefits accruing on death are disregarded when calculating damages.

54.Although the Plaintiff’s solicitors argue that the receipts were not signed by any of the Plaintiff’s family members, I find on the balance of probabilities that the Deceased’s family has received the sum of RMB20,000.  There is simply no evidence to contradict the hearsay evidence from Cheung Sai Ming and in the certificate dated 12 March 2007 that such sum has been paid over to the families and/or dependents of the Deceased, and this is supported by the aforesaid receipts which show that the insurance compensation and gratuity allowance had been paid out by the insurer and agency to廣東省台山市駐深圳市勞動管理工作組 which has been specified as being the authority for onward transmission to the Deceased’s family.  In any event, notwithstanding paragraph 13 of Cheung Sai Ming’s witness statement, Mr Tong has not disputed the assertions of payment in his subsequent witness statement or in his oral evidence.

55.However, I agree that the Deceased’s family has not given any express acknowledgment that acceptance of the aforesaid total sum of RMB20,000 was in full and final settlement of all claims (including the present common law claim) arising out of the Accident.  The receipts and the certificate dated 12 March 2007 only specify that upon payment of the sum of RMB20,000, any claim against the insurer for compensation would be concluded and the insurer’s obligation would be discharged. In my view, such receipts and certificate do not expressly touch on any common law claim.

56.The next question is whether the aforesaid total sum of RMB20,000 should be taken into account even though it was not paid in full and final settlement of the common law claim.

57.Under common law, the “incontrovertible” principle is that where the claimant had taken out accident insurance, the moneys received by him under the insurance policy are not to be taken into account in assessing the damages for the injury in respect of which he has been paid the insurance moneys, but such rationale is not available to the claimant who has not taken out and paid the premiums under the insurance policy which generates the payments to him (see McGregor on Damages 18^th ed paras.35-151 – 25-152 at pp.1384-1386).

58.Glidewell LJ in Pidduck v Eastern Scottish Omnibuses Ltd [1990] 2 All ER 69, 76 put it as follows:

“At common law, therefore, in the assessment of damages for personal injuries, there are to be taken into account sums which the plaintiff has received as a result of the accident. To this principle there are, however, two exceptions, namely payments due to the plaintiff under an insurance policy to which he has contributed, and moneys received as a result of public or private benevolence. Payments out of a non-contributory scheme, eg where the terms of employment provide for payment during sickness, are to be taken into account on the general principle.

This common law principle was applied to damages under the Fatal Accidents Act 1846 in Davies v Powell Duffryn Associated Colleries Ltd [1942] 1 All Er 657 at 660, [1942] AC 601 at 609, where Lord Macmillan said:

‘… except where there is express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased.’”

59.So is there “express statutory direction to the contrary”?  In Stanley v Saddique [1991] 1 All ER 529, 535-536, Purchas LJ traced the legislative history of English statutory provisions similar to FAO which he described as “a wholly artificial statutory structure …… erected [for] controlling the recovery of damages resulting from death”.  The Fatal Accidents (Damages) Act 1908 provided that in the assessment of damages there should not be taken into account any payment made under any contract of assurance or insurance. Section 2 of the Law Reform (Personal Injuries) Act 1948 provided that no account should be taken of any right to “benefit” resulting from the death in assessing damages under the Fatal Accidents Act 1846 (as amended), and in section 2(5) “benefit” was defined as benefit under the National Insurance Acts 1946.  This was subsequently repealed by section 2 of the Fatal Accidents Act 1959 which provided that in assessing damages in respect of a person’s death under the Fatal Accidents Act 1846 no account should be taken of “any insurance money, benefit, pension or gratuity which has been or will or may be paid as a result of the death”, and the definition of “benefit” was extended to include benefit under the National Insurance Acts 1946 (as amended) and any payment by a friendly society or trade union.

60.But in respect of the assessment of damages for personal injuries, there is no matching statutory development and the common law principles remain generally applicable.  Thus, “[the] assessment of damages under the Fatal Accidents Act represented a statutory departure from the basic common law principle against double recovery” (see Stanley at p.536 per Purchas LJ) and “[the] common law principles cannot prevail over the clear words of the statute” (see Pidduck at p.76 per Glidewell LJ).

61.The English Parliament then passed the Fatal Accidents Act 1976 which provided inter alia as follows:

“3.(1) In the action such damages may be awarded as are proportioned to the injury resulting from the death to the dependants respectively, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided among the dependants in such shares as may be directed.

……

4.(1) In assessing damages in respect of a person’s death in an action under this Act, there shall not be taken into account any insurance money, benefit, pension or gratuity which has been or will or may be paid as a result of the death.

(2) In this section – “benefit” means benefit under the enactments relating to social security, including enactments in force in Northern Ireland, and any payment by a friendly society or trade union for the relief or maintenance if a member’s dependants, “insurance money” includes a return of premiums, and “pension: includes a return of contributions and any payment of a lump sum in respect of a person’s employment.” (see Stanleyat p.537)

62.The above definition of “benefit” shows that the statutory framework has moved even further away from the common law principles.  In Cookson v Knowles [1978] 2 All ER 604, 608, Lord Diplock said as follows:

“Today the assessment of damages in fatal accident cases has become an artificial and conjectural exercise. Its purpose is no longer to put dependants, particularly widows, into the same economic position as they would have been in had their late husband lived. Section 4 of the Fatal Accidents Act 1976 requires the court in assessing damages to leave out of account any insurance money or benefit under national insurance or social security legislation or other pension or gratuity which becomes payable to the widow on her husband’s death ……”

63.The wording of sections 3 and 4 of the Fatal Accidents Act 1976 was changed by the Administration of Justice Act 1982 and is now as set out below:

“3.(1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.

……

4. In assessing damages in respect of a person’s death in an action under this Act, benefits which would have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.” (see Pidduck v Eastern Scottish Omnibuses Ltd [1989] 2 All ER 261, 263-264)

64.Sections 6(1) and 7 of FAO provide inter alia as follows:

“6.(1) In the action, such damages, other than damages for bereavement, may be awarded to dependants in such proportions as reflect their respective injuries as a result of the death.

……

7.  In assessing damages in respect of a person's death in an action under this Ordinance or under the Carriage by Air Ordinance (Cap 500), benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.”

65.As evident from the above wording and as confirmed by Suffiad J in Law Yuet Kwai v Secretary for Justice [2003] 3 HKLRD 727, 733, section 7 of FAO “was directly borrowed from the wording contained in s.3 of the Administration of Justice Act 1982 which amended s.4 of the Fatal Accidents Act of 1976 …… in England”.

66.After the amendment, “benefit” receives no definition. In Stanley, Purchas LJ said that “[as] a result of the passage of [the 1982 Act] none of the pre-existing statutory exemptions from the deductions of benefits from Fatal Accidents Acts damage survived unless it is through the medium of the word ‘otherwise’.  It seems inconceivable that Parliament would have effected a wholesale repeal of all the long-standing previous statutory exceptions from the deduction of benefits by a sidewind of this sort ……  In my judgment, the preferable construction is …… that by s 4 [ie the English equivalent of section 7 of FAO] Parliament intended to further the departure from ordinary common law assessment of damages for personal injuries by the artificial concept which has for many decades been the basis of damages recoverable under the Fatal Accidents Acts” (at p.538).

67.This is echoed by Purchas LJ in Pidduck at p.74 that the policy behind the exclusions provided by section 4 of the Fatal Accidents Act 1976 (as amended) and its predecessors (ie the English equivalent of section 7 of the FAO) is to “produce an exception to the common law rules for calculating the quantum of damages, namely to prevent the deduction of a benefit which otherwise would have to be deducted in order to arrive at the true loss on a common law basis”.

68.On the above rationale, it was held in Pidduck that for the purpose of section 4 of the Fatal Accidents Act 1976 (as amended) the widow’s allowance based on and received from the employer’s pension fund were “benefits” to be disregarded in assessing damages for death of her pensioner husband, so no deduction would be made from the claim for loss of dependency.  The base pension element could not be treated as having been paid to the widow before the death of her husband since (a) the benefit she received before the death was the financial support she received from her husband (and not any direct entitlement under the pension scheme) and it was only incidental that her husband’s financial source was a pension from his employer, and (b) the widow’s allowance was a right accrued to her under the pension scheme and payable directly to her by the trustees of such scheme as a direct result of the death of her husband.

69.Suffiad J followed Pidduck in Law Yuet Kwai in holding that although the widow’s dependent pension was based on the pension calculation for her deceased husband (who died before retirement age), her statutory entitlement to the dependent pension under Pension Benefits Ordinance Cap.99 as a result of her husband having died in the discharge of his duty was a benefit which accrued to her as a result of his death.  As such, the amount of the pension should be disregarded pursuant to section 7 of FAO.

70.In my view, the gratuity allowance in the sum of RMB8,480 paid by the agency upon the death of the Deceased is a private benevolence and as such is not deductible under common law or statute from any damages payable by the 1^st Defendant.

71.Likewise, it cannot be suggested otherwise that the insurance compensation and gratuity allowance in the respective sums of RMB11,520 and RMB8,480 were payable and paid upon the death of the Deceased.  In my view, they are benefits which have accrued to the Deceased’s dependants “as a result of his death” and should therefore be disregarded in assessing their loss of dependency claims.  The legislative intent and wording of section 7 of FAO overrides any possibility that the insurance compensation received by the Deceased’s dependants may result in double recovery.

72.The Plaintiff’s solicitors have referred to a similar provision in LARCO, ie section 20(2)(b)(i) of LARCO, but the Plaintiff’s present claim for loss of dependency is made under FAO and not LARCO, and the relevant provision is therefore section 7 of FAO and not section 20(2)(b)(i) of LARCO.

VII.  INTEREST

73.I have in paragraphs 2-17 above recounted the history of the present proceedings.  The Accident happened in March 1993 and the present proceedings were commenced in March 1996.  To take 18 years since the Accident and 15 years since the Writ of Summons to bring the claim for final disposal by assessment of damage speak of unjustifiable delay on the part of the Plaintiff and/or its legal representatives.  Quite unlike a personal injury claim in which the claimant’s physical and mental condition and his rehabilitation and ability to return to work may change as time passes, a fatal accident claim normally crystallises upon the death of deceased tort victim.  Indeed, in the present case, the Plaintiff has not drawn my attention to anything that would have precluded him from expeditiously pursuing the loss of dependency claim.

74.I therefore have much sympathy for Mr Cheung’s submission that any award of interest on damages payable by the 1^st Defendant should properly take into account the procrastination on the part of the Plaintiff.  Had it been within my discretion, I would not have hesitated to reduce any award of interest on such basis.  However, given the terms of the Judgment in favour of the Plaintiff against the 1^st Defendant for damages to be assessed “with interest on the damages for bereavement at the rate for the suitor’s funds (ie 2% per annum) from the date of death to the date of the judgment and interest on all pre-trial losses at half judgment rate from the date of accident to the date of judgment” (see paragraph 8 above) and further given the fact that no application has been made to re-open or set aside the Judgment on interest, I regret that I am unable to accede to Mr Cheung’s submissions.

VIII.  CONCLUSION

75.I therefore grant judgment in favour of the Plaintiff against the 1^st Defendant for the sum of HK$483,450 being bereavement in the sum of HK$150,000 and pre-trial loss of dependency in the sum of HK$333,450.  Interest is payable on bereavement at 2% pa from the date of the Accident to the date of the judgment on damages herein and interest on pre-trial loss of dependency is payable at half judgment rate from the date of the Accident to the date of judgment on damages herein, and thereafter at judgment rate until payment.

76.Although costs generally follow event, the Plaintiff has abandoned the LARCO claim as a result of Mr Tong’s clear evidence that the family savings came not from the Deceased but from Ng Fong Ying and that the new family house was built with savings by Ng Fong Ying and loans from friends and not from the Deceased’s contribution.  On such facts, there is no justification for maintaining any LARCO claim at all, and I see no reason when the 1^st Defendant should bear any costs of and occasioned by the LARCO claim.

77.There is also no basis for continuing to claim for any post-trial loss of dependency after March 2006, and I do not see the relevance of the medical expenses incurred by Ng Fong Ying and Tong Kam Kwan in 2000, 2001 and 2003 or the family’s current medical expenses. The Plaintiff is not entitled to costs of and occasioned by these matters.

78.I also do not see why the 1^st Defendant should bear the costs of and occasioned by preparing, filing and serving the Previous Statements.  In respect of the costs of and occasioned by the witness statement of Mr Tong, I am unable to see the relevance of detailed description therein of the current membership and earnings of the household in Mainland China and the narrative concerning the building of the new family house.  Likewise, I am unable to see why the costs of and occasioned by gathering of evidence in relation to 2008, 2009 and current earnings and expenditure of the household, the medical expenses incurred by family members, and the cost and construction of the family house should be laid at the 1^st Defendant’s door.

79.In the circumstances, I grant a costs order nisi that the 1^st Defendant do pay to the Plaintiff costs of the assessment of damages with certificate for counsel save and except there shall be:

(a) no order as to costs of and occasioned by :

(i) the Plaintiff’s LARCO claim;

(ii) the Plaintiff’s continued claim for any post-trial loss of dependency after March 2006;

(iii) any pleading and evidence concerning (1) medical expenses incurred by Ng Fong Ying and Tong Kam Kwan in 2000, 2001 and 2003, (2) the family’s current medical expenses, (3) the 2008, 2009 and current earnings and expenditure of the Deceased’s household in Mainland China, and (4) cost and construction of the new family house;

(iv) the Previous Statements, and

(b) no order as to half of the costs of and occasioned by the witness statement of Mr Tong,

and there be legal aid taxation in respect of the Plaintiff’s own costs.  The Taxing Master should take care to scrutinise the work done and costs claimed to ensure that they are necessary and proper for the assessment of damages.

80.The costs under the above costs order nisi shall be taxed if not agreed on party and party basis on High Court scale up to 31 December 2000 and thereafter on District Court scale. On 1 September 2000, the jurisdiction of the District Court for civil actions increased from HK$120,000 to HK$600,000.  The Plaintiff should have promptly applied to transfer the present proceedings to the District Court, and by allowing a reasonable window of 3 months for making such application the costs of the assessment of damages should fairly be taxed on District Court scale as from 1 January 2001.

81.As explained at the Hearing, this Judgment is prepared in English, but I have instructed my clerk to inform Mr Cheung that if he so requires a court translator will be arranged to verbally translate this Judgment into punti language for him at the High Court at a mutually convenient date and time.

82.I am grateful to both Mr Hingorani and Mr Cheung who have approached the assessment of damages with sensible moderation notwithstanding the prolonged and ambling procedural history of this case, which I note with consternation and regret.

Representation:

Mr Jeevan Hingorani instructed by Messrs Stephenson Harwood for the Plaintiff.

Mr Cheung Wing Kin on behalf of the 1^st Defendant, acting in person.