LAM FONG ON BEHALF OF CHAN YAU MUI v. CHOW PING WING APPOINTED TO ACT FOR THE ESTATE OF CHOW YAU DECEASED FORMERLY TRADING AS YAU KEE CONSTRUCTION CO.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN:

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ASSESSMENT OF DAMAGES

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1. This action arose from an accident on construction site on 26th August 1980 where the deceased slipped from the slope at the top of a retaining wall and fell about 30 feet between existing caissons. The deceased who was aged 67 years was a supervising foreman on the construction site, and received fatal injuries in this accident.

2. Personal representatives were duly appointed to represent both parties in this action as the sole proprietor of the construction firm employing the deceased had also died since the date of this accident. As no notice of intention to defend had been filed, interlocutory judgment with damages to be assessed and costs to be taxed was entered on 1st July 1986.

3. At the assessment, the Plaintiff's Counsel produced a Bundle of 10 documents including 8 documents set out in the hearsay notices duly filed and served on the Defendant in accordance with Section 47 of the Evidence Ordinance and Order 38 R.S.C. The other 2 documents produced were the Letters of Administration of the deceased's estate as document 9 and the post-mortem report on the deceased as document 10. Evidence was given by Madam CHEUNG Yip-mui as the de facto wife living with the deceased in Hong Kong at the date of his death. The documentary evidence produced confirmed that the legal wife of the deceased, CHAN Yau-mui, lived in Kwangtung, China and was being supported by him. Further there was evidence that a female child of the marriage, YEUNG Fut-loy, who also lived in Kwangtung, China was also being supported by her father before his death in 1980.

4. Madam CHEUNG gave evidence that she had known deceased for about 6 years before his death and that he had always enjoyed good health. She described the expenses met by the deceased to be as follows:-

5. Food and houshold expenses - $1,000.00 to $2,000.00 a month. She confirmed that deceased had a wife and daughter living in China whom he visited once every year.

6. The second witness called for the Plaintiff was YEUNG Yee, who worked with the deceased and had known him for many years. His relevant evidence was that the deceased was paid $120.00 a day as supervising foreman and a daily allowance of $30.00 for meals and travelling expenses. He said that they worked every day of the month on this construction site unless it was raining. Mr. YEUNG's evidence was that the deceased was a diligent and healthy man being very fit for his age. He stated deceased would now be earning $200.00 a day with a daily allowance of $30.00 for meals and travelling expenses and also an annual bonus of half a month's salary ($3,000.00). He confirmed that a supervising foreman like the deceased would now have one day a month off and be paid a monthly salary of $6,000.00.

7. The other 2 witnesses called at the assessment were the 2 sons of the deceased who live and work in Hong Kong. They confirmed that their mother and younger sister lived in China and were both supported by their father, the deceased. Their evidence was that the deceased sent money to their mother and sister through the Bank and through friends returning to China. It was their evidence that their mother was elderly and not in good health and unable to support herself. Further, that although their younger sister was married, she was not in good health and was only able to assist her husband by working in the fields. Neither of the sons claimed to be dependant on the deceased and were able to support their families with the assistance of their working wives.

8. Counsel for the plaintiff submitted at first that a multiplier of 7 be considered for the deceased, a healthy man of 67 years employed as a supervising foreman at the date of his death in 1980. It was later conceded that a more appropriate multiplier in the circumstances for a person of this age should be 6 years taking into account the average life expectancy of such a person in Hong Kong as being 12-13 years. By accepting the evidence that deceased's monthly salary at the date of his death in 1980 to be $4,500.00 ($150.00 a day including allowance over 30 days in the month) and that his monthly salary at the end of the multiplier period of 6 years to be $7,150.00 ($230,00 a day including allowance and annual bonus of $3,000.00) the median of those salary figures is $5,825.00.

9. Under the LARCO claim the free balance of the median monthly salary can be calculated as follows:

10. Under LARCO, the usual award for loss of expectation of life is $20,000.00 and this sum will be awarded in this case. The damages for loss of earnings is arrived at by taking the 48% free balance of the salary median of $5,825.00 which is $2,796.00 and multiplying that figure by 72 months as the 6-year multiplier period. The damages awarded for loss of earnings is calculated to be $201,312.00 ($2,796.00 x 72). The sum of $6,955.00 claimed as funeral expenses is supported by receipts and will be allowed. The total damages awarded under LARCO is $228,267.00.

11. It is necessary to consider whether either or both dependants have a claim under FAO which does not merge with the LARCO award. The widow in China can be considered as a sole dependant who received $750.00 per month from the deceased, being 75% of the total monthly support of $1,000.00. On basis that the salary of the deceased increased 60% over 6-year multiplier period, the widow's dependency would have increased to monthly support of $1,200.00. Taking the median of those 2 figures ($750.00 and $1,200.00) as $975.00, the widow's share under FAO over 6 years is $70,200.00 ($975.00 x 72 months). At the date of the deceased's death in 1980, the widow was only entitled to the first $25,000.00 awarded under LARCO. When this sum ($25,000.00) plus interest thereon at 5% from date of death to date of assessment ($8,000.00), the balance of the LARCO damages after deducting the award for funeral expenses is $188,312.00. The widow's share of the damages awarded under LARGO is half this balance of $188,312.00 being $94,156.00 plus the first $25,000.00 plus interest at say $8,000.00 which totals $127,156.00. As the widow's share under LARCO at $127,156.00 clearly exceeds her claim under FAO at $70,200.00 these claims must merge.

12. Turning to the daughter's claim under FAO, she was partially dependant on her deceased father. Taking her dependency to be 25% of the monthly support of $1,000.00, she would have received $250.00 a month in 1980. On basis that deceased's salary increased by 60% over the multiplier period, the daughter's monthly support would have increased to $400.00. Taking the median of these 2 figures ($250.00 and $400.00) as $325.00, the daughter's dependency claim over 6 years under FAO would be $23,400.00 ($325.00 x 72 months). The daughter's share under the LARGO damages as one of three issue (2 sons and herself) is calculated as one third of half of the balance after the widow's share. As has been pointed out above, half of the balance of $188,312.00 under LARCO is $94,516.00, so that the daughter's one third share of $94,516.00 is $31,505.00. Again, as the daughter's dependancy claim under FAO is only $23,400.00 that claim must merge with the higher LARCO claim of $31,505.00.

13. Worker's compensation in sum of $59,000.00 was awarded arising from deceased's death in the course of his employment and half of this compensation paid to Madam CHEUNG Muk-loi and the other half to the deceased's wife and widow in China. Accordingly, credit will need to be given for the payment of $29,500.00 as worker's compensation to the widow in assessing her share of damages under LARCO.

14. Summary of damages awarded are as follows:

15. Interest will be fixed on damages for loss of expectation of life at 2% from date of issue of the writ until the date of this assessment. Interest on the damages for loss of earnings and funeral expenses will be awarded at 5% being a slightly higher rate than normal to take account of the average higher interest rates which have applied since this writ was issued on 25th May 1983. This interest rate to run from that date to the date of this assessment.

16. The Plaintiff's costs are to be taxed and paid by the Defendant and the Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.