WANG CHIN YING v. LAM PING FUNG

HCPI 845/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. PI845 OF 1996

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JUDGMENT (ONQUANTUM)

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1. Some heads of damage have been agreed. By consent, there will be an award of $70,000.00 for bereavement pursuant to s.4(3) of the Fatal Accidents Ordinance, Cap.22. Interest will accrue on the sum at the prevailing rate of interest payable on suitor's funds, from the date of death - Kwan Lai Kuen v. National Insurance Co. Ltd. [1998] 1 HKC 98. There will also be an award by consent of special damages in the sum of $19,929.00 as prayed, together with interest thereon at half judgment rate from the date of death (24th August 1993) to date of judgment and thereafter at judgment rate until payment.

Pain, Suffering and Loss of Amenities

2. The Plaintiff claims the sum of $100,000.00 under this head. The Defendant submitted that having regard to the injuries sustained by the deceased, requiring her to be admitted to the Intensive Care Unit, she was more likely than not under sedation and unconscious for the eight-day period that she outlived the accident. In the circumstances, it is submitted there is no justification to make any award under this head. Both Madam Wang Chin Ying, the mother of the deceased and her daughter, Cheng Yeuk Mei assert in their witness statements that the deceased was conscious when first admitted to hospital and that thereafter she was semi-conscious and so would have been aware of and felt the effect of the pain of her injuries. Under cross-examination, Madam Wang indicated that the deceased was initially conscious in the first two to three days but later she was not. She also agreed that for almost eight days, the deceased was in coma. Another indication that the deceased was mostly unconscious and in a state of coma after the accident comes from Madam Wang's police statement made just two days after the deceased's death where she said as follows :

"She only said one phrase to me 'very painful', and then remained silent. She stayed in Queen Elizabeth Hospital after treatment. During her stay in the hospital, she was in coma until 24th August 1993 at 9.05p.m. when she was certified dead by a doctor."

3. This account is, in my view, a more reliable indicator of the true condition of the deceased rather than the testimony in court that after the operation the deceased was conscious until the last two to three days when she became semi-conscious. Accordingly, I find that no award should be made for PSLA because there is no medical evidence that would support the making of such an award. In the case of Lam Fong and Ho Kok-Keung (Co-administrators of the estate of So Hon Kam, Deceased v. On Lee and Co. and Jolly Construction Co. Ltd. and Ors, HCA No. A3433 of 1984, unreported, Keith J, 21st November 1991, HKLJ (1992) 100, the Court of Appeal awarded $40,000.00 for the deceased's pain and suffering as he only survived for some two weeks. Taking into account the fact that the deceased only lived for eight days, I award $30,000.00 to reflect the possibility that there might have been some time when she felt pain immediately after the accident and thereafter if she was in fact conscious. This will carry interest at the rate of 2% from the date of the writ (6th August 1996) to date of judgment and thereafter at judgment rate until payment.

Future Loss of Dependencies

4. There is some uncertainty in the evidence in respect of matters concerning the deceased's future. Ms Cheng, the sister of the deceased, agreed that she was a better student than the deceased. Accordingly, it would be reasonable to infer that the deceased would earn less than her sister, and therefore the deceased's contribution would be less than her sister's contribution of $4,000.00 per month.

5. An examination of her school report 1992/3 shows that in her final report, she scored 2As, 3Bs, 2Cs, 1D and 3Es (E denoting a mere pass). The deceased had expressed a wish to be an air-stewardess if she could not be accepted into university. At the time of her death, the deceased was a summer worker earning $6,000.00 - $7,000.00 per month. Therefore, I find that the deceased's contributions to the family would not exceed $3,000.00 a month and shared between four members of the family, the dependency of each member would be $750.00.

6. A multiplier of 3 is claimed in respect of the father's claim and this is not disputed by the Defendant. The award for the father would be $27,000.00 accordingly ($750 x 12 x 3). A multiplier of 10 would be awarded to Madam Wang, the deceased's mother who is now aged 46. After the first three years when the father would no longer be a dependant, the mother's dependency would be increased to include the sum that would have been due to the father.

Accordingly, the potential dependency claim of Madam Wang is as follows :

$750.00 x 12 x 3	$27,000.00
$1,500.00 x 12 x 7	$126,000.00
Total	$153,000.00

There is no interest to be awarded on this total sum of $180,000.00, being a future loss.

Loss of Accumulation of Wealth

7. The Plaintiff's claim here is based on the premise that the deceased would be earning $12,000.00 and saving about 10% of that monthly. In my judgment, there is no evidential basis to support a claim on this basis. The elder sister Cheng Yeuk Mei was a university graduate and as from February 1998, earning $11,235 per month. The deceased was not yet 17 when she died and had only just completed Form 4 and was on her summer vacation. There is just no evidence what education she would have completed and how much she would have earned. There are three approaches to this head of claim by the Hong Kong courts :

a) the 'conventional' 10% approach of Nazareth J (as he then was) in Chan Yuk Yin v. Chan Cheung Wan [1990] 1 HKC 474;

b) the interpretation approach of Kaplan J in Chan Sim Lan v. Sheen State International Ltd. [1994] 1 HKC 460; and

c) the lump sum approach of Deputy Judge Jones in Ho Pang Lin v. Ho Shui On [1994] 3 HKC 294.

The conventional approach of adopting 10% of the projected earnings of the deceased in the future is one used by the courts to try and give a mathematical figure to a claim where there is little or no evidence of savings or a saving pattern that can be evinced from the lifestyle of the deceased. There is strictly no legal basis for adopting 10% as the notional figure apart from the factor of convenience and the assumption that a person may be able to save at least 10% of his monthly earnings (see Nazareth J in Chan Yuk Yin).

The validity of this approach was questioned by Kaplan J in Chan Sim Lan where having carefully considered the observations of Nazareth J (at p.474 B-G), he went on to say as follows :

".... I must confess I find it difficult to see how they can be said to be carrying out the intention behind s 20(2)(b)(iii). What the court has to look at is whether or not at the date of death by natural causes, the deceased would have achieved an accumulation of wealth. That means that he would have saved it during his working life, not spent it during his retirement, and died possessed of it. In those circumstances, the estate is compensated for the tortious act which prevented this from happening. ...." (at p.474 G-H)

".... It seems to me far more likely that such accumulated savings made by manual workers during their lifetime would be spent on making provisions for themselves and their spouses during their retirement. As I have already said, the years of retirement are getting longer, and if inflation goes on as it is at present, the elderly will find it very difficult to make ends meet because they do not enjoy the corresponding increase in wages which are designed to take into account the question of inflation. So in this case, it seems to me that the Master is, as was Nazareth J, looking at the wrong moment in time. It is relevant to consider what savings would have accumulated by the time of retirement. However, what is essential is to consider whether that accumulated wealth would have been in existence at the date of death by natural causes." (at pp.475H-476A)

Kaplan J declined to make any award for loss of accumulation of wealth in this case. The interpretation approach of Kaplan J was one which had been earlier adopted by Master Jones in Wai Kang Kwan v. Wong Wing Hong [1989] 2 HKC 585 which was the first decision on this section since the change in the law in 1986. The deceased in that case was a 17 year-old girl who had just finished Form 5 and been working for 1 1/2 months before her death. Dealing with the estate's claim for loss of accumulation of wealth, Master Jones observed as follows :

" The terms of the section are such that the court must be 'satisfied ... that the deceased would have achieved an accumulation of wealth by the time she would otherwise have died.' Mr Fok stressed in argument that the court should do the best it can, given the uncertainties and the admitted difficulties in calculation. He points out the energetic and conscientious nature of the deceased girl and argues from that the likelihood of a saving of around two-thirds of her salary. To this he seeks to apply a multiplier of eight, representing the balance of her whole life multiplier after the application of the multiplier to the dependency.

The speculative nature of this approach is compound. It ignores the possibility of children making a full working life difficult or impossible. It ignores the possibility that the deceased may marry a poor man and have no savings at all. It ignores the possibility that she may marry a richer man and have no need to work. Finally, and as defence counsel points out, it ignores the lack of an established saving pattern to support an assumption of what used to be called the free balance." (pp.589G-590A)

Master Jones declined to make any award for loss of accumulation of wealth in this case.

In Ho Pang Lin v. Ho Shui On [1994] 3 HKC 294, Deputy Judge Jones attempted to reconcile the above two polarised positions of the courts when dealing with claims by the estates of deceased persons who are very young or who have no pattern of savings at the time of death. He reviewed the above cases (pp.297E-299C). He then went on to say as follows :

" I suggest that there are three situations a court will have to consider on the issue of accumulation of wealth. Firstly and most simply, there is the deceased with the obvious savings pattern. This should be applied in quantifying the accumulation and perhaps upgraded for a likely increased, for example, when the future departure of children from the household would increased the disposable income.

The second category is where there is no savings pattern and no indication whatsoever from the lifestyle of the deceased whether or not accumulation was likely. This situation would usually be found when the deceased was a young person whose lifestyle had not yet crystallized into a recognizable pattern. This was precisely the position I addressed in Wai Kang Kwan in declining to make an accumulation award to the estate of a young girl who died at 17. Not only did the evidence fail to disclose a savings pattern, but there was no indication that the deceased either was or was not likely to have accumulated wealth. In those circumstances, an award could only have been speculative.

The third category of situation is that of the deceased without any identifiable savings pattern, but whose habits and lifestyle indicate a probability the he would accumulate wealth. As always, the court must avoid speculation. However, if thrift, frugality, responsibility and perhaps good employment prospects clearly emerge from the evidence then an award should be made even if the contemporary income is fully utilized, for example, on maintaining a young family.

The difficulty in such a situation lies not in deciding that wealth would have been accumulated, but in quantifying the damages for the loss of that wealth. It was this dilemma which Nazareth J addressed in assuming that a notional 10% of net income would be devoted to savings. I confess I find this approach unattractive, as it confers on the award a spurious mathematical validity by assuming a savings percentage calculated at a time when the evidence shows that no savings were made. It is of course a device and I think unnecessary.

Compensation for personal injuries and death is an area of the law replete with artificiality. This is necessarily so when assumptions are extrapolated from the present and projected into an unknown and often distant future. However, the artificiality should be minimized, particularly when it conflicts with the evidence.

In this third situation, when the court is satisfied that accumulation would have occurred but can find no evidential basis to quantify it, I suggest that a global award is appropriate. ....." (pp.299C-300B)

8. The court awarded a lump sum of $100,000.00 in respect of the accumulation of wealth claim. This approach has been adopted by Master Cannon in Madam Lam Po Yuk v. Mercury Shipping Co. Ltd. (HCPI 750/1996) and by Keith J in Kwan Lai Kuen v. National Insurance Co. Ltd. [1998] 1 HKC 98, where both awarded global sums of $100,000.00. In the present case, the deceased was a young girl of 17 who had just completed Form 4. In my judgment, it would be an exercise in sheer speculation to make an award on the basis of an assumed earning of $12,000 with a multiplier of 18 and a savings percentage of 10% as claimed by the Plaintiff. As has been said repeatedly, the court should not enter into the realms of speculation, although it is legitimately entitled to draw reasonable inferences from the evidence, if the evidence support those inferences. I find that there is simply insufficient evidence before the court to make any award based on the above figures.

9. The deceased began working in about mid July 1993 in a boutique in Jordan which was part of the Green Peace chain store. It was her first job which she found herself and she was doing it as a summer job. Unfortunately, the accident occurred less than one month after she began working in the boutique. At the time of her death, she had not yet been paid her wages but her mother received about $3,000 to $4,000 from the boutique's owner.

10. I find it more probable than not that the deceased would have accumulated some wealth by the date of her death from natural causes. I take into account the fact that the deceased would have had many years ahead of her to accumulate wealth. I consider also that the deceased had shown a natural tendency to be as industrious and productive as her efforts would have enabled her to be, which is indicated by her taking on a summer job when she was barely 17.

11. I will also adopt the global sum approach and award $100,000.00 under this head.

JUDGMENT

There will therefore be judgment for the Plaintiff in the following sums :

1.	Special damages	$19,929.00
2.	Interest at half judgment rate from date of death to date of judgment and thereafter at judgment rate until payment.
3.	PSLA	$30,000.00
4.	Interest at 2% from date of writ to date of judgment and thereafter at judgment rate until payment.
5.	Bereavement	$70,000.00
6.	Interest at the prevailing rate of interest payable on suitors' funds from the date of death.
7.	Total dependency claim	$180,000.00
8.	Accumulation of wealth	$100,000.00
9.	Order nisi for costs to the Plaintiff, to be taxed if not agreed.
10.	Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.