CHAN KING WAN AND OTHERS v. HONEST SCAFFOLD GENERAL CONTRACTOR CO. LTD.

HCPI 1267 & 1269/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTIONS Nos. 1267 & 1269 of 1996

__________________

_______________________

JUDGMENT
on
Assessment of Damages

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1. On 13.12.93. the 2 deceased were killed when the scaffolding on the 22nd floor of a unit in South Horizons gave way. The 2 deceased fell to their deaths.

2. Liability was entered against the 2nd defendant with a finding of 40% contributory negligence on the part of the 2 deceased. Therefore the 2nd defendant will be liable for 60% of the damages assessed by this court.

3. The hearing of assessment of damages was hotly contested. Mr Mumford SC appeared with Mr Louis Tong for the plaintiffs, and the 2nd defendant's case was argued by Miss Selina Lau with her usual skill and zeal. The main areas of dispute were the figures to be adopted as representing the income of the 2 deceased at date of death and at trial; and the assessment of loss of accumulation of wealth.

4. In order to put counsels' submissions into context, I will first relate a brief historical background of the cases.

5. In 1986, the 1st defendant Honest Scaffolding General Contractor Company Limited ("Honest Scaffold") was established. Up until the time of their deaths, the 2 deceased were shareholders, directors and employees of Honest Scaffold, together with a Madam Yip Siu Yin ("Madam Yip" who was PW2). These 3 persons each held one third of the shares of Honest Scaffold and they were all directors of the company.

6. Honest Scaffold's work was in the erection and the dismantling of bamboo scaffoldings.

7. Pausing here, it must be immediately apparent that the 2 deceased were not like the scaffolding workers one usually deals with in assessments. The normal scaffolding worker is an employee who earned a fixed wage. These deceased left estates of approximately HK$2.5 million each. About $1.3 million of each of their estates were investments in landed properties.

8. There was a division of labour in Honest Scaffold. Madam Yip took care of the administration and accounting side of the business, and the 2 deceased performed the actual scaffolding work. Honest Scaffold acted principally as a sub-contractor of scaffolding work, it hired workers when the need arose. At times Honest Scaffold would in turn sub-contract work out to others.

9. Madam Yip and the 2 deceased were paid monthly salaries. They also received dividends from the company about once a year. The audited accounts of Honest Scaffold for the 3 years prior to the fatal accident were produced as Exhibits P3A, P3B, and P3C.

10. Madam Yip explained that in order to reflect the difficult and dangerous aspects of their work, the 2 deceased received salaries amounting to double her salary. Around 1990, the 2 deceased were getting $13,000 per month to Madam Yip's $6000. These sums were gradually increased to $16,400 and $7560 respectively around 1992 or 1993. The level of the 2 deceased monthly wages were fixed by reference to the Union rates x 30 days.

11. The 2 deceased also received reimbursement for the sums they spent on travelling expenses and meals. These reimbursements came to around $1500 or $1600 each.

12. The 2 deceased were married men with families. At the date of the accident, the 1st deceased was aged 50, and had 4 children. As for the 2nd deceased, he was aged 39, and the sole support of his mother, wife and 2 children.

13. Since the 2 deceased's scaffolding work generated the income of Honest Scaffold, the accident in December 1993 also dealt a fatal blow to the company. Honest Scaffold folded. Madam Yip had to set up "Honest Scaffolding Company Limited" referred to throughout as "the new company" with 2 new partners. The new company performed the same sort of work as that of the old company. Unfortunately the 2 new partners of Madam Yip did not have the experience of the 2 deceased.

14. Before calculating the assessments, it should be noted that many of the issues are common ones, relating to both of the 2 deceased. As Counsel for the parties in their written submissions have dealt with the 1st deceased, followed by that of the 2nd deceased. I too will deal with their cases in that order.

15. The evidence of PW2 Madam Yip was crucial to the evaluation of the income of the deceased.

16. When I considered her evidence I reminded myself that Madam Yip cannot be regarded as an independent witness. She had been in business with the 2 deceased for many years. It was clear that she displayed a warm regard for the families of the 2 deceased when she gave evidence.

17. I found Madam Yip to be a most impressive and truthful witness. Madam Yip possessed all the qualities of the pioneers who came to Hong Kong in the last century and built this place from the "barren rock" to the thriving modern metropolis it is today. She was only a clerk in 1986 when she formed the idea of starting a scaffolding company. She recruited the 2 deceased. With application, hard work and co-operation, the old company was slowly built up. In the year after its inception, the financial picture was already starting to look healthy. She managed the accounts, so I have no doubt that it was Madam Yip who masterminded and steered the old company into a successful enterprise, amassing enough assets to enable the 3 shareholders to invest in landed properties.

18. Madam Yip gave her evidence clearly and calmly. Not only did she stand up well to a long and searching cross-examination, I thought that during cross-examination, she displayed a thorough grasp of the affairs of both the old and the new companies.

19. When she was cross-examined on aspects of her estimates of the notional monthly income of the 2 deceased, she stated that their incomes would have risen from $30,000 per month in 1994 to $60,000 per month in 1999.

20. The defence argued that Madam Yip's estimates of the deceased's incomes had they not met with the fatal accident were speculative and involved a complete departure from the well established practice followed in the old company. One should not forget that together, the 2 deceased and Madam Yip were the old company. The 3 of them could have chosen not to follow the rates reported by the Union. They could have agreed to adopt some other rate as a basis of their wages, or could have set their own salaries at any level.

21. I do not find Madam Yip's estimates to be speculative. She had a wealth of documentary material in support of pre-accident figures, and she put forward reasoned arguments for arriving at her estimated figures.

22. Madam Yip explained to the court why a different system was adopted for the new company. She described how she had been facing the challenge of building up business confidence after the disastrous accident. She pointed out that her new partners did not have the experience of the 2 deceased. With added responsibilities in the new set up, it was reasonable for her to receive a higher wage.

23. Counsel argued that Madam Yip's assertion that the new company had lately achieved profits of about $900,000 was unsubstantiated since the audited accounts for the post accident period showed that the new company had made losses every year. Although she did not produce the latest audited accounts in support, Madam Yip's evidence on this point was persuasive and cogent. She gave graphic details of her strategy to build up the new company. She recounted her plan to forgo early profits in order to gain a foothold in the market. I accepted her evidence that the new company deliberately under-bid its competitors so that it would get more contracts, and that the new company's share of the market was obtained at the expense of making early profits. After it had established itself, the new company showed a turnover of $26 million in 1998. I accept her evidence that the new company has now become a profitable enterprise.

Method of calculation of the income of the 2 deceased

24. It is the "income" of the deceased that forms the basis of the value of the dependency, see page 2 of Mr Justice Seagroatt's decision in page 2 of Tsang Mei Ying and So Sau Lin, HCPI 544/98 (unreported). The dividends received by the 2 deceased were paid to them for their labour. There can be no argument that the dividends were part of their income.

25. I rejected the defence's argument that neither the dividends paid nor the sums reimbursed to the 2 deceased should be brought into account for the purposes for computing the value of the dependency for the reasons given below.

26. Miss Lau submitted that since profitability of the company was uncertain, it would be wrong to bring the amounts paid by way of dividends into that computation. Madam Yip has provided us with ample documents relating to both the old and new companies. Evidence of company accounts from 1986 to the last accounting year were available to the court.

27. It was argued that the 2 deceased did not apply the dividends to the support of their families, since the money had been paid into joint accounts or invested in properties. The money representing the dividends had been paid to the deceased. They could have spent it, or applied the funds in whatever manner they chose to. The deceased could have spent the sums on presents or holidays for the family. It just so happened that they chose to invest the funds.

28. The defence argued that as the $1500 paid to the deceased each month were for items consumed by the deceased, or given to them as transportation money, those sums were never available to the 2 deceased for contribution towards the support of their dependents. The $1500 or $1600 reimbursed to the 2 deceased for food and travel may not have been directly applied to the maintenance and support of their families. However, if the deceased had not been in receipt of those sums, there would have been about $1500 a month less for them to apply towards maintenance and support. Therefore in essence those sums formed part of their income.

29. Therefore I find that both the dividends and the reimbursed sums form part of the income of the 2 deceased, together with the wages received from the company. So far I have dealt with the cases of the 2 deceased together. There are differences in their cases, and these differences will be indicated at the appropriate places in this judgment.

30. It was argued by the defence that the conventional percentages approach is inappropriate when assessing the cases of the 2 deceased. Counsel argued that the loss of dependency should instead by based on "a real assessment of the notional dependency of the dependents". I find that the approach laid down by Mr Justice Seagroatt in the Tsang Mei Ying case to be the one that I should follow here. It was stated in Tsang Mei Ying that the calculation of the value of the dependency should be on a percentage of the income of the deceased unless there are cogent reasons to the contrary.

The assessment of the dependency of the 1st plaintiff

The dependents of the 1st deceased were:
Chan King Wan, the widow, born on 8.6.50.
Leung Lai Sin Josephine, daughter, born on 20.7.73.
Leung Siu Kuen Kelly, daughter, born on 12.5.75.
Leung Tik Lung, son, born on 11.11.77.
Leung Tak Wai, son, born on 25.1.80.

31. He was aged 50 at the time of the accident, and to all accounts a fit and healthy man.

32. Madam Yip told us, and I accept that evidence, that the 1st deceased received wages of $16,400 at date of death. Added to the sum of $1500 received as reimbursements, the monthly receipts amounted to $17,900. He also received a dividend of $180,000 for the year 1992/1993.

33. The widow said that the expenses of maintaining daughter Josephine in Taiwan came to the sums shown in page 44 Bundle B. Those amounts were $121,060 in 1993; $221060 in 1994; $210,000 in 1995; $232,000 in 1996; and $122,500 in 1997, the year Josephine graduated. The average amount spent on Josephine is about $181,324 per year.

34. The defence contended that the widow's evidence was wholly unreliable. The main basis for the rejection of the widow's evidence was that she stated in court that the 1st deceased had given $7000 to her for her own exclusive use, which was inconsistent with her witness statements. In the widow's witness statements she had said that $7000 was for household expenditure.

35. It was argued that the expenses claimed by the widow were greatly exaggerated in that the sums therein substantially exceeded the income of the 1st deceased.

36. I agree with Miss Lau that the widow's evidence about the $7000 was inconsistent with her earlier statements, but did that inconsistent statement render the whole of her evidence unreliable?

37. I considered the whole of her evidence with care. I recalled her demeanour in court. She impressed me as a subservient housewife with little education. During her husband's lifetime she would have happily deferred all decisions to him. After the accident, she would have deferred all decisions to her children. Although her evidence on the sum of $7000 was inconsistent with previous statements, I do not think that rendered the whole of her evidence unreliable. I do not accept that she made that statement to mislead. Certainly no one was misled by her contention. In my view, she is the type of middle-aged woman imbued with misguided Confucian ethics. As such she would think it necessary to tell all and sundry that the deceased gave her plenty of spending money, as some kind of proof of his devotion to her. After a while she would have convinced herself that that was indeed the case. It may also be that the widow was affected by the occasion of her appearance in court. I certainly do not accept that she was the type of person who would exaggerate or enhance her claim. She had her opportunity of doing so in respect of some of the expenses, but she did not. With the greatest of respect to her, I do not find her intellectually capable of attempting to mislead the court.

38. The figures presented are reasonable in the circumstances. The 1st deceased was a hard working man who toiled to give his family a good life. It is true that his expenditure exceeded his income in the sense that he had to draw upon his dividends, but as Mr Mumford had demonstrated, the 1st deceased was making enough to cover expenses. If the figures given were accepted for the sake of argument, Mr Mumford was able to use the figures to illustrate that the shortfall of $137,616 (that is the difference between expenses of $412,556 and income of $396,000) could have been absorbed without much difficulty. It was common ground that the 1st deceased left an estate of about $2.5 million. At only 5% interest per annum, that sum of $2.5million would have yielded a sum of $125,000.

39. I accepted the evidence of the widow that the 1st deceased was a frugal person who only spent about $5000 on himself a month. At the time of the accident, the children were aged 20, 18, 16 and 13. The expenses stated are reasonable and credible in all the circumstances. Josephine had left to go to university in Taiwan several months before her father died. The sum of $121,060 for the upkeep of a university student in 1993 cannot be challenged. Kelly was then a student at Caritas Vocational School. Only a modest sum of $2500 was claimed as her expenses. The sums for the boys were $2373 and $1000 respectively. No item in the list of family expenses call for any particular comment. It was claimed that the family spent $4000 on food and the same amount for "outdoor dinners". These are all modest and reasonable sums, and the 1st deceased could have afforded to spend these sums, after all the old company was doing well enough to move to new premises when the accident occurred.

40. What would have been the earnings of the 1st deceased at trial?

41. As identified by Mr Mumford, the notional earnings of the 2 deceased would have depended on what the old company's prospects might have been. The defence has criticized the evidence put forward by the plaintiffs as being inconsistent with government statistics and in any event far too vague.

42. This aspect of the case is dependent upon the evidence of Madam Yip. I have considered her evidence against every point put forward by defence counsel and I find that she has successfully countered those objections. I accept her evidence that if the old company had continued, it would have shown better results than the new company, as the new company had to establish itself. The increase in turnover of the new company gives an indication of what the business of the old company might have been. The new company's turnover went from $3.5 million to $26 million in 1998.

43. Madam Yip stated that the 2 deceased's incomes would have been along the following lines, and I have no reason to doubt her estimates.

44. The evidence relating to the expenses of the family show that they remained more or less constant. Since the accident, the children have progressed and grown. Josephine finished her course in Interior Decorating in Taiwan in 1997. She was married in 1998. Kelly was in vocational school when her father died. She had to work to help support the family after the accident. The widow informed us that Tik Lung had just graduated from the Baptist University at the time of the trial at the end of May 2000, but she could not enlighten us what his field of study was. Be that as it may, the figures supplied by the widow as representing Tik Lung's expenses are both reasonable and believable. They were a modest $2373 in 1993. At that time he was a schoolboy. Those figures remained constant until he went to university in 1997. This is to be expected. At that time the figure was $5350. The youngest child Tik Wai is now in Australia. He went there last year and we are told that he is now in a class that is the equivalent of our Form 6. He is expected to stay at school for another year before going to university. The widow was unable to tell us what his present expenses are.

45. I have no doubt that the 1st deceased would have continued to work hard to provide for the continual education of his family. After Josephine finished her studies, he might have even stayed within his income. If he managed to do so, more money would have been applied towards savings.

The Multiplier for the 1st deceased

46. PW3 Mr Yip Tim said that scaffolding work depended on technique and skill more than physical strength. I have been referred to the case of Ta Xuong v Incorporated Owners of Sun Hing Building (1997) 4 HKC 171 where Mr Justice Seagroatt accepted that a scaffolder would be able to continue in that work until he was 65.

47. In the light of the evidence adduced, I find that had he not met with the accident in 1993, the 1st deceased would have been able to work as a scaffolding worker until the age of 65. It is quite possible he may have worked as a contractor until the age of 70.The 1st deceased was 50 years old. There is no indication he was anything other than fit and active. Therefore in all the circumstances I find the multiplier of 10 is a reasonable one to adopt.

48. I am satisfied that on the figures adduced by the 1st plaintiff, the support given by the deceased to his family was $38,850 at death and $68,825 at trial as calculated by Mr Mumford. The median would come to $53,838.

49. The period from death to trial is reckoned at 78 months.

50. Although expressed as a simple mathematical division amongst all the members of the household, I accept Mr Mumford's figures for what the 1st deceased was spending on himself, and the calculation for his share of the rent and food to be about 24%.

51. The pre-trial loss of support will therefore be 76% of $53,838 x 78 =$3,191,526.

Post Trial dependency

52. The only dependents at trial were the widow and Tik Wai. Josephine had married, and Kelly had gone out to work long ago. Tik Lung graduated from university just before the trial.

53. For the 3 years post-trial multiplier, the overall dependency would be $68,825 (the support at trial) less the 24% of his own upkeep x 12 which comes to $627,684.

Loss of Accumulation of Wealth

54. It has been said that what the court looks for is whether or not at the date of death by natural causes the 1st deceased would have achieved an accumulation of wealth. As Deputy Judge Jones said in Ho Pang Lin v Ho Shui On [1994] 3HKC 294 :

" I suggest that there are three situations a court will have to consider on the issue of accumulation of wealth. First 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 increase, for example when the future departure of children from the household would increase 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 that 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. "

Counsel for the plaintiffs used this example to demonstrate that "even in one of the worst years, the 1st deceased would have saved $105,000".

55. Counsel submitted that in 1994, according to Madam Yip's figures the 1st deceased would have earned $30,000 in wages and received $180,000 as dividends. If one added the sum of $125,000 that he could have earned as interest on his assets of $2.5 million, it would come to $665,000.

56. I am satisfied on the evidence that a saving pattern definitely existed. As the 1st deceased had saved $2.5 million, proportionately using the 10 year multiplier, he would have saved $4,166,666.

Loss of Services

57. This was pleaded as "Do it yourself expenses". The plaintiffs submit that Berry v Humm (1915) 1 KB 627 is authority for the proposition that a claim for services is maintainable, and it lies under the FAO. Further, section 20B(a) of LARCO Cap 23 only referred to the loss of a wife's services, not to a husband's. In fairness counsel also referred me to the case of Chan Ki v Travel Trade Ltd (1998) 2 HKC 153. Master Cannon held in this case that a husband could not claim for a deceased's wife's services. The plaintiffs submitted that s20C(4) of Cap 23 does entitle a wife to claim for the loss of services of a husband.

58. Having considered Chan Ki's case, I agree with Master Cannon that as claims for bereavement and loss of a spouse's society were mutually exclusive, the widow cannot claim for the loss of services of the 1st deceased.

59. The case for the children is different. S20C of LARCO does not operate to deprive them of a claim for loss of services. I considered all the points put forward by Miss Lau against an award under this head. I did not agree that the widow's evidence on this matter to be incredible. Even fathers with full time jobs are known to cook the occasional meal for the family. In the case of middle class families it may be breakfast on Sundays, or a barbecued meal. I did not find it surprising that a man with a full time job might find cooking the occasional meal a pleasant past-time.

60. Having said that, I found that the figures adopted for the calculations by the counsel for the 1st plaintiff to be too high since they are inclusive of the interest of the widow. A sum of $251,067.38 was claimed. A reduction of 20% of this figure i.e. $200,853.90 would be about right. That sum is awarded to the children to be equally divided between them.

Bereavement The amount of $70,000 is agreed.

Funeral Expenses

61. The funeral expenses came to $81,341. There was a small sum of $160 claimed for cotton vest and hat; and $1600 for 2 tables of vegetarian food. I agree with the principles stated in Lau Tak Lung v Ngan Guen Min & Anor [1998] 2 HKC 75 that expenses of burial ceremonies were recoverable if the items were reasonable in all the circumstances. The status, financial position of the deceased, his family and religious beliefs were to be considered. Taking everything into consideration, $81,341 was a reasonable sum for a man in the circumstances of the deceased, as was the provision of the vegetarian food. The provision of vegetarian food accords with customary practices and the sum expended was modest.

62. The $81,341 claimed will be allowed.

Legal Costs

63. It may be recalled that the old company were just about to move into new premises when the accident occurred. A transaction for the sale of the old premises had been entered into just before they died. Legal costs of $21460 were incurred for each of the deceased. These costs were incurred in applying for probate limited to the completion of the sale. The plaintiffs rely on the cases of Siu Yik Lin v Ho Kwai Fong 16 HKLJ (1986) 153; and Thomas v Cunard White Star Ltd (1950) PD 153 for this proposition. The plaintiffs submitted that in Thomas's case, the costs of obtaining letter of administration in order to bring the action are recoverable as costs.

64. The defence argued that even if the legal costs could be regarded as losses to the estate consequent upon the death of the deceased, are expressly prohibited by s20(2)(b)(i) of LARCO. That section provides :

" 20. Effect of death on certain causes

(1) ..........

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person -

(a)...

(b) shall, where the death of that person has been caused by the act or omission which gives rise to the cause of action -

(i) be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;"

Having regard to the wording of the section, I find that Miss Lau's interpretation is correct. This item cannot be allowed.

Summary

Interest:

1. Interest on the award for Bereavement should be at the rate payable for Suitor's Funds, Kwan Lai Kuen v National Insurance Co Ltd [1998] 1 HKC 98.

2. The pre-trial dependency and funeral expenses will be at half rates from the date of the accident.

3. The loss of accumulation of wealth award will not carry interest for the period before trial, following Hsu Li Yun v Incorporated Owners of Yuen Fat Building [2000] 1 HKLRD 900.

65. There will be judgment for the 1st plaintiff against the 2nd defendant for $4,367,347.54 with interest, and costs to be taxed if not agreed.

66. The 2nd Plaintiff's case

The dependents of the 2nd deceased were :

Poon Chung Kam, the widow, born on 10.4.58.
Leung Suk Man, daughter, born on 8.12.75.
Leung Chun Kit, son, born 8.6.81.
Chan Ho, mother of the 2nd deceased, born on 9.11.21.

67. Many of the matters discussed in relation to the 1st deceased are equally applicable to the 2nd deceased. I do not intend to repeat them here. Where necessary, I will just deal with matters which apply specifically to the 2nd deceased.

Dependency

68. At the time of the 2nd deceased's death, his son and daughter were aged 12 and 18. They were both at school. The widow was a housewife. She told the court that the 2nd deceased kept $4000 himself, he gave her $10,000 and $500 pocket money to his mother. The widow spent about $2000 to $3000 on facials, cosmetics and clothes. The daughter was taking piano lessons, and the son was taking computer lessons. It was submitted by the defence that the widow had exaggerated these expenses.

69. I do not agree. These are quite normal expenditures if the families can afford them. The widow, aged 42, was still a very attractive woman at trial, so I expect she would have been quite good looking at the time of the accident nearly 7 years ago. I find that most loving husbands and fathers who are able to afford to do so would be quite willing to pay for non-essentials like music lessons, facials and pretty clothes.

70. Income at date of death. I am satisfied that on the figures adduced by the 2nd plaintiff, the support given by the deceased to his family was $38,850 at death and $68,825 at trial as calculated by Mr Mumford. The median would come to $53,838.

71. The pre-trial loss of support is calculated to be about 80% of the median figure of $53,838 i.e. $43,070. This is arrived at by taking the 2nd deceased's share of the 1993 household expenditure ($12,470÷4=$3117) as a percentage.

The Multiplier

72. The 2nd deceased was 39 when he died. Mr Mumford submitted that a multiplier of 16 was appropriate, citing the case of Ta Xuong. It was argued that as the 2nd deceased would have had a working life of 26 years ahead of him, (until the age of 65) a multiplier of 16 as a scaffolding working was reasonable. After that it would be reasonable to adopt a 3 year period for his work as a contractor.

73. Miss Lau has agreed on 16 for the widow, on the basis that the 2nd deceased would have continued to support the widow to the end of his natural life, assuming a natural life expectancy of 78 years. Miss Lau submitted that the multiplier for the mother should be 8; a multiplier of 9 to be adopted for the son; and up until July 1997 only for the daughter. She also suggested that a multiplier of 13 only ought to be applied to common family expenses.

I find that a multiplier of 15 is appropriate.

Pre-trial loss of dependency

74. The figure for calculating the pre-trial loss for all the dependents : $43070 x 78 months = $3,359,460.

75. The mother of the 2nd deceased received $500 from him, so $500 x 78 = $39,000.

76. For the widow and children, the dependency figure to be used is $42,570 being $43,070 - $500.

77. The calculation of their individual shares are as follows. The daughter was a student at the time of the accident. She ceased to be a dependent in 1997 when she started work as a secretary. A period of 44 months is adopted in her case. $42,570 x 44 x 1/3 = $624,360.

78. The calculations for the son and the widow would have to take into account the change in circumstances when the daughter ceased to be a dependent.

For the son the figures would be as follows:

$42,570 x 44 x 1/3 = $624,360 for the earlier period.
$42,570 x 34 x 1/2 = $723,690 for the later period.
Making a total of $1,348,050.

The figures for the widow would be as follows:

$42,570 x 44 x 1/3 = $624,360 for the earlier period.
$42,570 x 34 x 1/2 = $723,690 for the later period.
Making a total of $1,348,050.

Post trial dependency

79. It was the evidence of Mr Yip Tim PW3 that a scaffolder would be able to carry on as such until the age of 60. I accept that evidence. The post trial period would be (180-78) 102 months.

80. The mother of the 2nd deceased is now 78. Counsel for the plaintiff suggested her part should be assessed as 5 years x $6000. I think that 3 years x $6000 would be more realistic. $6000 x 3 = $18,000.

81. I agree that another 1 1/2 years is to be allowed for the son. The widow said that once he finishes his present course to become a chef, he would be likely to take another one. The son's calculation would be as follows. The figure for income at trial is $68,825. This sum less the $500 for grandma comes to $68,325. At 50% x 18 months the sum comes to $614,925.

82. The widow should also receive $614,925 for the next 18 months. Thereafter she should receive 84 months at $68,825 x 2/3 which comes to $3,854,200.

Loss of Services

83. I found that the evidence adduced was sufficient for me to form the impression that the death of the 2nd deceased deprived his children of the love and attention of a caring father. I accept the widow's evidence that the 2nd deceased would spend time with them on his days off. For the same reasons given above in relation to the 1st deceased, the claim for loss of services are allowed for the children but not for the widow.

84. Having said that, I found that the figures adopted for the calculations by the counsel for the 1st plaintiff to be too high since they are inclusive of the interest of the widow. A sum of $237,031.69 was claimed. A reduction of 33% of this figure i.e. $158,021 would be about right. This sum is awarded to the children to be equally divided between them.

The loss of accumulation of wealth

85. The loss of accumulation of wealth will be calculated in the same way as for the 1st deceased. The evidence adduced also showed that the 2nd deceased too accumulated $2.5 million in assets at the date of his death. Using a multiplier of 15, applied proportionately the award under this head is $6,249,999.99.

Funeral Expenses

86. The actual expenses of the funeral of $30,896 have been agreed by Miss Lau in her final submission. There was one item which was contested, this was the $86,910 for niche charges. That sum was objected to on the basis that the sum claimed represented a double niche space, that was large enough to accommodate the spouse's urn as well, when the time came. It was submitted that even if that was so, the expense was a reasonable one because if the adjacent niche were to be filled, the widow would not be able to finding a resting place next to her husband. I agree with the defence that only half of the niche fees should be allowed. The total awarded under this head is therefore $77,651 ($30,896 + $43,455 + $3300 half of the management fees for the niche).

The Legal Costs

87. The legal costs incurred in applying for limited probate is disallowed for the same reasons given above.

Summary

Interest:

1. Interest on the award for Bereavement should be at the rate payable for Suitor's Funds, Kwan Lai Kuen v National Insurance Co Ltd [1998] 1 HKC 98.

2. The pre-trial dependency and funeral expenses will be at half rates from the date of the accident.

3. The loss of accumulation of wealth award will not carry interest for the period before trial, following Hsu Li Yun v Incorporated Owners of Yuen Fat Building [2000] 1 HKLRD 900.

88. There will be judgment for the 2nd plaintiff against the 2nd defendant for $8,005,859.19 with interest, and costs to be taxed if not agreed.