LAM FONG v. CHAN CHUN FAI PATRICK

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff sued on behalf of the parents, as next of kin, of the deceased, who was killed when run down by a motor car driven by the Defendant on 17 July, 1983. The deceased was 18½ years of age and resided in China. He was a member of the crew of a vessel visiting Hong Kong.

2. The writ was issued on 7 September 1985 and judgement was entered by consent of the parties on 25 September 1986. The deceased was held to have been guilty of contributory negligence to the extent of 35%.

3. Only one witness gave evidence, namely Mr. Lam Fong, the Plaintiff, and his evidence was mostly hearsay and, in any event, related to a document which I ruled inadmissible in evidence. Mr. Stables tendered 2 bundles of documents -

4. As to the declaration at pp.23 of P.1, I ruled the document inadmissible on the basis that on a balance of probabilities, given the nature of the information it contained and the status of the person making the document, the contents were hearsay. I also ruled both the documents in P.2 inadmissible as they did not comply with Order 38 Rule 22 and 23 of the Rules of the Supreme Court. This meant that the only admissible and relevant evidence to assist me on the assessment of damages were the declarations at pp.15, 25 and 32 of P.1, being declarations by the parents of the deceased.

5. The action was brought under 2 heads, firstly on behalf of the estate of the deceased under Cap.23 (LARCO), the parents being the persons entitled to inherit, and secondly under Cap.22 (FAO) on behalf of the deceased's alleged dependants, being the parents, grandmother and 2 younger sisters. It was common ground that the FAO claim of the parents merged into the LARCO CO Claim.

6. There was no claim for funeral expenses and the conventional award for loss of expectation of life of $20,000.00 was agreed and I award that sum by way of damages.

7. As to the claim by the alleged dependants, the law is succintly stated at pp. 57 and 58 of "Damages for Personal Injuries and Fatal Accidents in Hong Kong" by Martin and Rhodes (N.17 on the Defendant's List of Authorities.

                    "The claimants must show that they were dependant or likely to depend on the deceased, that is, they must prove they suffered a pecuniary loss as the result of his death."

8. In my opinion, there was no evidence whatever before me upon which I could resolve this issue in favour of the claimants. Taken together, all that the declarations of the parents disclosed was that the deceased contributed towards their livlihood and that the grandmother and 2 sisters lived in the same household as the parents and the deceased. There was no evidence that alleged dependants received any part of the deceased's contribution to his parents, nor as to whether either or both parents had jobs. The Defeadant  disputed liability under the FAO claim and in my view, the Plaintiff was not asking me to draw proper inferences about dependency but asking me to indulge in outright speculation, which would not be a proper approach to the problem. The Plaintiff was in the district where the parents live as recently as last month, and any perceived shortcomings in the declaration thus far obtained could easily have been remedied during that visit. I make no award of damages under the FAO head.

9. As to the multiplier to be used in calculating the "lost years" element of the FALCO award, Mr. Stables requested that the figure be 17 and Miss Ng suggested that "about 16" would be appropriate, both citing authorities. I will use Mr. Stables' figure.

10. As to the multiplicand to be used, the evidence as to the deceased's earnings and the manner in which he disposed of them is tenuous in the extreme. All I had before me were the bald assertions by the parents in the declarations at PP.15 and 32 of P.1. Although the declarations are admissible in evidence, the weight which should be given to them raises serious questions about them. The declarations were made specifically with legal proceedings for damages in mind and by the persons intended to benefit from such proceedings. It is inconceivable that the makers would minimise the relevant figures and there is the very real possibility that they have exaggerated them. The deceased was not in receipt of regular wages as he and a group of others had bought a boat which they used to transport brickes. The parents assert that the deceased "could get" $350.00 per month. Miss Ng argued that, in effect, this expression indicated that this figure was the deceased's maximum potential income and that there was no evidence he actually earned that much. I agreed with Mr. Stables that I could not place too much weight on the use of a word like "could" in a translation. Nevertheless, as a matter of commonsense, the profits of the business were sure to fluctuate and I shall assume that the figure of 350 Renminbi was as high as the deceased's earnings went and that they could be lower. Miss Ng argued that the claimed contribution to the parents of 200.00 Renminbi was "spectacularly high" for a youth of 18, but I don't find it too surprising that someone of that age would be turning over a substantial portion of his earnings to his parents. The deceased would, of course, enjoy some of the benefits of that contribution while living at home but, as Mr. Stables, pointed out he would be living on the boat for part of each month and have meals provided. According to the parents, apart from his contribution to them, the deceased spent his income on building materials for use in building a house for when he married, but, as Mr. Stables correctly pointed out, resulting house would form part of the deceased's estate, so that that expenditure should form part of the "free balance".

11. As regards future income, this is extremely difficult to forecast in view of the deceased not working for wages, but for a share of profits. The enterprise may flourish and the profits rise, or the business could fail. With regard to future contribution to the parents, their declarations reveal the fact that the son was planning marriage, upon which event, the deceased's contribution could have ceased or at least reduced.

12. In all the circumstances, I am going to base my calculations on an average monthly income of 300.00 Renminbi and a contribution to the parents of $150.00 renminbi.

13. Mr. Stables asked me to adopt a "free balance" percentage of 75%, while Miss Ng argued that the normal figure of 55% should be used. I am prepared to accept that the "free balance" in this case should be significantly higher than normal, but consider 70% as high as I can go. This figure gives a "free balance" of 210 Renminbi, which at the exchange rate of 28 Renminbi = $100.00, proposed without dispute by Mr. Stables equates to $749.70.

14. I assess damages as follows -

15. There will be interest on the pre-trial award for loss of expectation of life of $20,000.00 less 35% at 2%, from the date of the issue of the writ, i.e. for 21 months. Interest on the FALCO damages less 35% will be at 3.75% for the 47 months pre-trial period.

16. I order costs to the Plaintiff. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.