YU BIK CHU AND YAN LAI FONG v. YU FAI LOK AND ANOTHER

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JUDGMENT

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Power, J.A.:

1. The deceased YAN Man-yin was on 10th November 1980, just two days before his 50th birthday, struck by a Kowloon motor bus in Canton Road, Kowloon. He succumbed to the injuries received in the accident and the administrators of his estate YU Bik-chu and YAN Lai-Tong sued the Kowloon Motor Bus Company under the Law Amendment and Reform (Consolidation) Ordinance and the Fatal Accidents Ordinance for damages in respect of his death.

2. The hearing came before Rhind, J. who awarded an amount of $334,089.00 to the claimants. The quantum of that award is now under appeal.

3. The original Grounds of Appeal raised a number of matters. Before us, however, they have resolved themselves to one issue which is whether the trial judge was correct when assessing the free balance to make use of the figures set out in the deceased's HongKong & Shanghai Bank Savings Book relating to the twelve month period immediately preceding his death. He arrived thereby at a percentage figure for the free balance of 86.44%. The judge was fully aware that this was an exceptionally high figure but put this down to the fact that the deceased must have been a commendably frugal person.

4. Mr. Tang who appears for the appellants has pointed out that the Savings Book covers a period of 20 months and challenges the correctness of an approach which takes account of the last 12 months only. He points out that if the full period of 20 months is used a very different picture emerges. Mr. Pritchard, who appears for the respondents, agrees that normally one would, when doing an averaging exercise, take the longest period for which figures are available adjusting where necessary for matters such as wage increases. It appears however, that the judge acceded to his argument that, it was more appropriate in the present case to use only the last 12 months both because it was the period most proximate to the death and because it was a period which demonstrated a consistent pattern of saving. We are not satisfied that this was a correct approach. The full period of 20 months throws up a very small figure of apparent saving because of a withdrawal of $10,000 in April 1979. There was, until a short time ago, no explanation for this Counsel has informed this Court that his instructions now are that this amount was withdrawn by the deceased in order to enter into some form of business venture.

5. This clearly gives support to the view which we had already formed that it would be unsafe to treat the savings account as an account of savings. We are satisfied that no relevance can properly be placed upon the savings account when making an assessment as to what the deceased had saved or might be likely to save in the future. We are satisfied, as was suggested by Mr. Tang, that the proper, and, indeed, not ungenerous, approach is to apply the arbitrary figure of 10% of earning when assessing the savings that the deceased might be expected to make.

6. We adopt the alternative calculation of Mr. Tang whereby the free balance is calculated upon the basis of the deceased's contribution to his family which rises proportionately with his income. Using this calculation the pre-trial free balance would be $85,859.63 and the post-trial free balance would be $42,085. The total award requires the addition to those figures of $20,000 for the loss of expection of life, $8,010 for the funeral expenses, $1,600 for the interest on the award for loss of expectation of life and $31,289.88 for the interest on funeral expenses and pre-trial free balance at 5%. The sum of these figures is of $188,844.51. We are satisfied that the award of the trial judge should be varied from the figure of $334,089.00 to one of $188,844.51. The appeal therefore succeeds to that extent.

7. Costs will follow the event. The respondents' cost to be taxed in acordanee with the Legal Aid Regulations.