THELMA G. CHAVEZ AND OTHERS v. FONG KA YIU, FRANK

HCPI 570 & 666/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NOS. 570 AND 666 OF 1999

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ASSESSMENT OF DAMAGES

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1. This assessment relates only to the 1st plaintiff since the 2nd and 3rd plaintiffs have settled their case with the defendant and is therefore completely out of the picture.

2. The 1st plaintiff's claim is for damages for personal injuries suffered by her in a traffic accident on 30 June 1996, in which she was the pillion passenger on a motor cycle driven by Mr Maurice Green ("the deceased") along Ting Kok Road, when it was involved in a head-on collision with a private car, no.ES6012, driven by the defendant and which was, at that point in time, travelling on the wrong side of the road because the defendant was attempting to overtake the vehicle in front of him.

3. The 1st plaintiff also claims for loss of dependency as a result of the death of the deceased in the same accident on the basis that the 1st plaintiff had been living with the deceased as husband and wife, and partly dependant on him for some five years prior to the accident.

4. Interlocutory judgment was entered against the defendant on 28 August 1999 with damages to be assessed. I shall deal firstly with the assessment in relation to her claim for personal injuries.

INJURIES AND TREATMENT

5. The 1st plaintiff was 40 years old at the time of the accident and 44 at the assessment hearing. She came to Hong Kong to work as a domestic helper in 1989.

6. As a result of the collision, the 1st plaintiff suffered multiple injuries and was admitted to Prince of Wales Hospital. She suffered the following injuries :-

i) fracture of the 5th metacarpal of the right hand;

ii) fracture of the ulna of the right forearm;

iii) fracture of the right femur; and

iv) compound fracture of the right tibia and fibula, being a comminuted fracture with external wound.

7. The 1st plaintiff underwent operations on 1 and 2 July for the nailing and fixations of the several fractures. Further operations were performed on the 1st plaintiff on 5 and 9 July for debridement, re-adjustment of the fixations and skin grafting. Bone grafting of the compound fracture of the right tibia was carried out on 27 August. She was discharged from hospital on 5 September 1996.

8. Because of leg infection, the 1st plaintiff was re-admitted to hospital on 11 November and further bone grafting took place on 15 November for the delayed union of the fractured right tibia, and the 1st plaintiff was discharged from hospital for the second time on 21 November 1996.

9. The 1st plaintiff was again re-admitted to hospital on 12 February 1997 to have the external fixators removed and was discharged for a third time on 17 February 1997.

10. The 1st plaintiff was examined by Dr Danny Tsoi who prepared a report dated 27 May 1998, in which Dr Tsoi noted that the right leg injury was complicated by extensive soft tissue loss which necessitated repeated operations including external fixator immobilization, coverage of soft tissue defect by muscle flap, skin and bone grafting. Leg infection and delayed union of the fracture had caused further complications requiring insertion of antibiotic beads and debridement. The leg eventually healed and after the fixators were removed in February, a brace was arranged for protection. When Dr Tsoi examined her, she was still on sick leave.

11. The 1st plaintiff's complaints, when examined by Dr Tsoi, were weakness of right upper arm and right hand grip, deformed right little finger, weakness of right lower limb, pain in right leg and knee, stiffness of right ankle, shortened right lower limb, difficulty in squatting down, and ugly scars and unstable ulcers in right leg.

12. After a full examination of the 1st plaintiff, Dr Tsoi came to the following findings :-

i) The fracture of the 5th metacarpal of the right hand had healed with a fixed flexion deformity of the joint of the little finger. This was static and further treatment was unlikely to improve the condition of the little finger. Removal of the implant was optional.

ii) The fracture of the right ulna healed with residual pain which was not uncommon and which may last for many years. The removal of the metal implant was optional.

iii) The fracture of the right femur healed in a satisfactory position after GK nail fixation. The alignment was good but there was slight shortening of the bone resulting in a 2 cm length discrepancy. There was also slight wasting of the thigh muscle. With an interval of two years since the injury, further physiotherapy was unlikely to improve the muscle bone and strength. The most update X-ray showed impingement of the anterior cortex of the femur by the distal end of the nail which might account for her persistent knee pain. Removal of the metal implant was recommended by Dr Tsoi.

iv) The compound fracture of the right tibia was the most serious injury of all. Multiple operations had been required to reconstruct the tibia and the adjacent soft tissue. The scar overlying the tibia was noted to be still unhealthy and a small ulcer was detected. This required special attention since enlargement of such ulcers was common. Although healed, the fracture was not stable since signs of previous osteomyelities (infection of the bone) was noted and relapse may occasionally occur. There was gross stiffness and weakness of the ankle joint cause by scarring and adhesion of the muscle and tendons around the fracture site. Muscle transfer also weakened the plantarflexion action of the ankle joint.

13. In conclusion, Dr Tsoi at that time assessed a 20% impairment of the whole person as a result of the multiple injuries sustained, without counting the cosmetic impairment.

14. Dr Tsoi recommended removal of the femoral nail as well as the gentamycin beads at a cost of $40,000.00 in a private hospital. The operation required two weeks of hospital stay with further sick leave of two months. Dr Tsoi was of the opinion that afterwards, the plaintiff should be able to perform some light duty job of the sedentary type such as cashier, office clerk, shop assistant, telephone operator and sedentary type of factory worker. From the orthopaedic point of view, he assessed her loss of earning capacity at 35%. However, he observed that she would encounter great difficulty in attempting to resume her pre-injury job as a domestic helper.

15. Dr Tsoi had also examined the 1st plaintiff in May 1998, December 1999 and October 2000 with a view to obtaining update reports on her condition. Fortunately, for the 1st plaintiff, the dangerous right leg infection has not recurred. Dr Tsoi also concluded that the chance of a relapse of osteomyelities in the future is remote.

16. In so far as her right hand is concerned, the 1st plaintiff still suffers a deformed little finger with weakened hand grip.

17. The last examination showed no change in the muscle power of the right knee and ankle but there has been some slight improvement in flexion, inversion and eversion of the right ankle giving some improvement in mobility of the right leg.

18. This slight improvement has caused Dr Tsoi to revise his assessment of the 1st plaintiff's impairment figure to an overall impairment of 7% of the whole person (as opposed to his assessment of 9% of the whole person given in December 1999).

19. As for her cosmetics disabilities, the 1st plaintiff suffers from multiple scars shown in the photographs attached to the report of Dr Nicholson dated 19 June 1997. They are as follows :-

i) On the back of the right forearm, a readily noticeable pigmented surgical scar 110 mm long crossed by nine pairs of stitch marks and on the back of the ulna region of the right arm, a conspicuous pigmented and thickened surgical scar 40 mm long.

ii) On the front of the right side of the brim of the pelvis, a conspicuous pigmented surgical scar 85 mm long crossed by seven pairs of conspicuous stitch marks. Also, on the back of the right side of the pelvis is a conspicuous pigmented surgical scar 75 mm long crossed by eight pairs of conspicuous stitch marks.

iii) On the outer aspect of the hip region is a conspicuous pigmented surgical scar 135 mm long and crossed by eight pairs of large stitch marks.

iv) A number of conspicuous healed pale wrinkled abrasion scars scattered on the front of the patella region of the right knee. Across the front of the medial and lateral aspects of the knee is a conspicuous pigmented surgical scar 185 mm long crossed by 10 pairs of stitch marks. Above the medial aspect of the knee is a conspicuous area of 80 x 75 mm are multiple pigmented healed abrasion scars. There is also a noticeable pigmented surgical scar 40 mm long above the lateral aspect of the right knee crossed by three pairs of stitch marks as well as an area of pigmented healed abrasion scars 40 x 20 mm above the back of the right knee.

v) The right lower leg appears crooked and bent medially. Most of the front of it is covered by multiple ugly irregular pigmented scattered healed abrasion scars as well as a very large area of ugly and dark pigmented skin grafts with an irregular contour. Parts of the graft are tethered to the bone and the underlying muscle. Over the end of the back of the right leg is a conspicuous darkly pigmented surgical scar 265 x 6 mm crossed by 22 pairs of stitch marks.

vi) Over the medial and lateral aspect of the left thigh are three readily noticeable scars of skin graft donor area with areas of 135 x 50 mm, 150 x 50 mm and 125 x 65 mm. These scars are irregularly pigmented with a wrinkled surface.

20. The cosmetic surgeons are in agreement that the 1st plaintiff suffers from an 8% cosmetic disability which is permanent. Her scars will always remain ugly and conspicuous.

21. The injuries which the 1st plaintiff suffered, as detailed above, are not disputed by the defendant, nor the history of her recovery and rehabilitation.

PAIN SUFFERING AND LOSS OF AMENITIES

22. It seems clear in this case that the orthopaedic injuries suffered by the 1st plaintiff would, by itself, put her into the lower end of the serious injury category as it is understood in the case of Lee Ting Lam. However, I need also to consider the cosmetic disabilities of the 1st plaintiff and arrive at a global award for pain suffering and loss of amenities.

23. I have been referred by both counsels to a number of awards in local cases in their submissions as to the correct amount to be awarded under this head of damage. Taking into account the injuries and also the cosmetic disabilities of the 1st plaintiff, her age and other particulars, and using the local awards as guidelines, in my view, the proper amount to be awarded for pain suffering and loss of amenities in this case would be $600,000.00 and I will award that amount of damages assessed under this head.

LOSS OF EARNINGS

(a) Pre-trial

24. The 1st plaintiff gave evidence that, before the accident, she worked for a number of different Japanese families on a daily basis at $60.00 per hour because of her ability to speak Japanese, having worked for some years in Japan previously. Her working hours would usually be from 9 am to 5 pm but on occasions she would be asked to baby sit for these families in the evening. Her evidence was that she would earn on average $7,000.00 per month.

25. That she was working outside of her home before the accident is supported by the evidence of Ms Elisa McKay and Mr Ian Foster. The 1st plaintiff has also produced in evidence a diary containing the names and addresses of those Japanese families with whom she had worked over the years.

26. I accept the evidence of the 1st plaintiff and her witnesses relating to her working away from the home before the accident. On that evidence, I find that $7,000.00 is a reasonable estimate of her earnings on the basis of the rate that she was paid.

27. I also find that, for the pre-trial period (until judgment) of 56 months, the 1st plaintiff is entitled to full loss of earnings because she could no longer return to her pre-accident work due to her injuries coupled with the fact that she no longer had a work visa to remain in Hong Kong and that back in the Philippines, her age and her injuries made it difficult if not impossible for her to obtain suitable alternative employment. In so far as her inability to obtain suitable alternative employment in the Philippines is concerned, I also take note of the fact that it was only in the last medical report of Dr Tsoi, after the examination in October 2000, that the impairment figure was reduced to 7% due to further improvement in her condition.

28. Accordingly, the loss of pre-trial earnings comes to $7,000.00 x 56 months which gives $392,000.00, and that will be the award under this head of damage.

29. In assessing her loss of earnings, I have only taken into account $7,000.00 per month which she was earning from Japanese families. I have not taken into account any money paid to her by the deceased although the evidence was that there was a contract of employment between her as a domestic helper and the deceased as employer. The reason for this is that I have come to the conclusion that the contract of employment between the 1st plaintiff and the deceased was to convenience the 1st plaintiff from remaining in Hong Kong on a work visa but in actual fact, her work was with the Japanese families which would not have allowed her very much time, or any at all, to work for the deceased as a domestic helper. In so far as the money given to her by the deceased is concerned, I shall deal with them under the heading of "loss of dependency".

(b) Future

30. Turning now to the loss of future earnings. Firstly, the injuries to the 1st plaintiff is now well over four years and there has been much improvements in her condition. Dr Tsoi had indicated that although she may have much difficulties in coping with the job of a domestic worker, she should be able to take on lighter work. In cross-examination, it emerged that the 1st plaintiff has some qualifications from the Philippines in work related to cosmetics and that she agreed that she could be a cosmetician in the Philippines earning between 7,000.00 to 10,000.00 Pesos a month which comes to about HK$1,000.00.

31. Taking the above into account, although the multiplicand used for the pre-trial loss of earnings was $7,000.00 per month, I am of the view that even at her age, there is more than a likelihood of her finding work in the Philippines, possibly as a cosmetician, in the not too distant future.

32. Accordingly, the proper multiplicand which I should use to assess her future loss of earnings would be $1,000.00 less than the $7,000.00 used for assessing the pre-trial loss, namely $6,000.00.

33. As for the multiplier, the 1st plaintiff has submitted a multiplier of 13 on the basis that the 1st plaintiff would have continued working for the Japanese families in Hong Kong for as long as the deceased would have continued to stay here. The defendant, on the other hand, says that the multiplier should be 1, on the basis the 1st plaintiff's evidence was that because she is now 44 years old, nobody would sign her on for work now as a domestic, alternatively a multiplier of 8 on the basis that the 1st plaintiff continued to work for the deceased taking into account the possibility the relationship between the 1st plaintiff and the deceased may terminate at some future date.

34. For my part, I take the view that the 1st plaintiff had already been in such a relationship with the deceased since mid-1991 and up to the date of the accident, their relationship had already been for five years. Nothing indicates that this relationship between the 1st plaintiff and the deceased will end prematurely albeit that there are times when they disagree, and the 1st plaintiff threatens to leave the deceased. Despite those disagreement between them, things have always worked out. Even the fact that the deceased has a wife and daughter in the United Kingdom did not prevent his relationship with the 1st plaintiff from lasting for the five years before he died.

35. The evidence is that the deceased was 46 when he died in this accident. He was an engineer and his work was related to the repairing of ships whenever their engines broke down. He was based in Hong Kong for such work although he had to travel out of Hong Kong at times to perform his work. There is no evidence before me to indicate that their relationship will not continue or that the deceased would be quitting either his work or Hong Kong.

36. However, on the other hand, I also take account of the fact that neither the 1st plaintiff nor the deceased is a permanent attachment to Hong Kong, and that the 1st plaintiff could work in Hong Kong only as long as she has a visa granted by the Hong Kong authorities. Given all the circumstances of this case, I would think that a reasonable multiplier to adopt in this case would be 10. This will give the loss of future earnings to be $6,000.00 x 12 x 10 which comes to $720,000.00.

SPECIAL DAMAGES

37. Coming to the other items of special damages claimed by the 1st plaintiff, a number of items claimed have been admitted by the defendant either in his Answer to the Revised Statement of Damages or in the final speech of counsel for the defendant. The agreed items are as follows :-

i) taxi fares between July 1996 and July 1997	$15,064.70
ii) departure tax from Philippines (six times)	$642.00
iii) airport tax when leaving Hong Kong (five times)	$250.00
iv) cost of renewal of Hong Kong visa (15 times)	$2,025.00
v) cost of purchasing insoles for shoes	$480.00
vi) cost of a part time maid for 8 months	$24,000.00

38. The last item above, namely the cost of a part time maid, was admitted by the defendant in his Answer to the Revised Statement of Damages dated 29 May 2000. However, it was only in counsel's final address (submitted by way of written submission) that leave was sought to withdraw such admission on the basis that such admission was wrongly made as the claim was not fully supported by documentary evidence. The 1st plaintiff was not cross-examined on this aspect of the case at all by defence counsel nor was there the slightest hint during the trial that there was anything wrong with the admission made.

39. To allow leave to withdraw such an admission at this stage would effectively deprive the 1st plaintiff any chance to deal with this claim or to give an explanation in evidence. That, in my view, is a prejudice which cannot be overcome. For that reason and the fact that the defendant should have discovered the wrong admission (if such was the case) between the time the admission was made in May 2000, and the trial of this matter at the end of October 2000, I would not grant the leave sought by the defendant to withdraw such admission and that admission will stand.

40. I shall now deal with the disputed items of special damages.

41. Firstly, there is a claim for $12,230.00, being the cost of air fares for the 1st plaintiff returning to Hong Kong from the Philippines between December 1996 and May 1998 to obtain medical treatment. It should be noted that, after the accident and the death of the deceased, the 1st plaintiff had no further right to remain in Hong Kong without any work visa. In those circumstances, she had returned to live in the Philippines after being discharged from the hospital in September 1996. She then had to return to Hong Kong in December 1996 and in February 1997 for the further operations. She also returned to Hong Kong from the Philippines in November 1997, January 1998 and May 1998 to be medically examined by medical experts for the preparation of reports for this case.

42. No doubt the 1st plaintiff had also returned to Hong Kong for the trial in October 2000 but the cost of the air fares for that occasion had not been claimed under special damages and rightly so in my view since it could more properly be dealt with by the taxing master as legal costs of this action.

43. As for the air fares claimed for the earlier occasions, they are reasonable and necessary and arose as a direct result of the injuries sustained by the 1st plaintiff and will be allowed in full.

44. The second disputed item of special damage is the cost of personal items of the 1st plaintiff being a motorcycle helmet, camera, a bag and clothes of the 1st plaintiff. The total amount claimed for these personal items comes to $9,136.00. The defendant submits that the helmet clearly does not belong to the 1st plaintiff and the amount of the other items claimed are excessive and thus not reasonable.

45. In view of the death of the deceased coupled with the fact that the 1st plaintiff must have been the bailee of the helmet which she was wearing as pillion passenger, I am inclined to allow the full claim for the helmet at $3,200.00. I will also allow her claim for the camera at $2,450.00 as it appears to be a reasonable. However, for the bag and clothes, I will only allow a sum of $1,000.00 and not the amount claimed for. The claim for personal items will therefore come to $6,650.00.

46. Next, the 1st plaintiff claims $2,409.00 being the cost of calcium pills and pain relief medication which she had to pay for herself. There is also a claim for $2,935.00 being the cost of medical treatment which she received after she had returned to the Philippines from Hong Kong after her discharge from hospital here.

47. In view of the fact that she had to return to the Philippines some three or four months after the accident and had been living in the Philippines since then, it is reasonable to expect her to have to spend some money on medical treatment and medication in the Philippines as it would have taken her a while to recover from those injuries or even for the pain to subside. The two sums claimed appear reasonable and will be allowed.

48. The total amount of special damages assessed therefore comes to $66,685.70.

49. Before leaving this head of damage, there is one point raised in argument which I will need to deal with. There was evidence given by Mr Ian Foster that after the accident personal friends of the deceased and the 1st plaintiff including himself and also the bike club of which the deceased was a member had raised between $80,000.00 to $100,000.00 to help the 1st plaintiff in her predicament. It was also his evidence that about half of the money raised came from the bike club and will have to be repaid to the bike club by the 1st plaintiff. In fact, the 1st plaintiff has already been asked to repay the bike club such money.

50. On this evidence, the defendant has submitted that the amount of money raised more than covers the amount of special damages and because of it, the 1st plaintiff had not been out of pocket in so far as special damages are concerned, so she has suffered no loss thus extinguishing the claim for special damages. In this respect, the defendant relies on paragraph 1201 of Butterworth's Hong Kong Personal Injury Service under the heading "Collateral Benefits".

51. I cannot subscribe to the contention put forward by the defendant. The special damages claimed by the 1st plaintiff and awarded above undoubtedly arose directly out of the injury sustained by the 1st plaintiff. On the other hand, the money raised by the friends of the 1st plaintiff and the deceased and also the bike club came about because of the benevolence or generosity of their friends out of sympathy for the 1st plaintiff's misfortune and not as a consequence of the injury to the 1st plaintiff or the death of the deceased. There is no reason why the defendant should benefit by the acts of generosity of those friends. Moreover, the money raised by the bike club is clearly a loan probably to tide the 1st plaintiff over in her time of need, albeit gratuitously, and which she has to repay. Applicable to the present situation are the words of Lord Reid in the case of Parry v. Cleaver [1970] AC 1 where he said :

"It would be revolting to the ordinary man's sense of justice, and therefore contrary to public policy, that the sufferer should have his damage reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer."

52. For these reasons, I am not prepared to reduce any part of the special damages assessed above.

FUTURE EXPENSES

53. The 1st plaintiff claims for a number of items in relation to future expenses. Of these items, the defendant has only admitted the sum of $2,400.00 being only a part of what is claimed for the future cost of insoles for the 1st plaintiff's shoes.

54. The 1st plaintiff has given reasons for why she is against having future operations in the Philippines to remove the femoral nails and gentamycin beads and those reasons I accept. Moreover, since she had received all her surgery in Hong Kong hospitals in respect of her fractures, it is reasonable that the further operations to remove those foreign elements should be carried out in Hong Kong hospitals as well.

55. I also accept that the femoral nail and gentamycin beads being foreign elements inside the 1st plaintiff ought to be removed when the time is right for them to be removed lest, she runs the risk that such foreign element may turn out to be a hazard to her in due course probably in the form of pain or other discomfort.

56. For these reasons, I will allow the claim for $40,000.00 being the cost of the operation to remove the femoral nails and the gentamycin beads.

57. However, the claim for the cost of an operation ($10,000.00) to straighten the left small finger of the 1st plaintiff will not be allowed since the medical opinion is against having such an operation and even if carried out, the improvement to the 1st plaintiff will not be to that extent which can make this claim reasonable.

58. Because I have disallowed the 1st plaintiff's claim for an operation to straighten her left small finger, her claim for two return trips to the Philippines will be reduced to only one. Accordingly, the cost of one return trip is allowed at $2,500.00.

59. The claim for future cost of insoles will be allowed at $2,400.00 as admitted by the defendant as I do not find it reasonable that the 1st plaintiff should be allowed to claim this item on the basis of having to purchase 10 pairs of shoes a year for the next 16 years.

60. Finally, there is also a claim for $25,000.00 being the cost of medication for use by the 1st plaintiff in the future. There is no evidence from the doctors of such need by the 1st plaintiff. The evidence comes from the 1st plaintiff herself that since her return to the Philippines, she had to purchase vitamin, medication and lotions for her scars. Accepting the fact that she is now residing in the Philippines and that most if not all her medical treatment was given to her in Hong Kong hospitals, and taking a very general and broad view of the circumstances of this case and that she may possibly need some lotion for her scars from time to time, I will allow the sum of $5,000.00 under this head.

LOSS OF DEPENDENCY

61. I turn now to deal with the question of loss of dependency. However, before dealing with the actual assessment itself, a point of law has been taken by the defendant as to whether or not the 1st plaintiff is a "dependant" of the deceased. I shall therefore deal with this point of law first.

62. Section 2(1)(c) of the Fatal Accidents Ordinance defines one category of "dependant" which is relied upon by the 1st plaintiff is as follows :-

"(c) any person who -

(i) was living with the deceased in the same household immediately before the date of his death; and

(ii) had been living with the deceased in the same household for at least two years before that date,

as the husband or wife of the deceased."

63. It is clear from the evidence in this case and which I accept that the 1st plaintiff has been living in the same household with the deceased since mid-1991, sharing the same bed with the deceased. It is also apparent from the 1st plaintiff's evidence that the deceased, at all times since they started to co-habit, had a wife and a daughter in the United Kingdom (being the 2nd and 3rd plaintiffs herein) - a fact which is known at all times to the 1st plaintiff. The deceased's wife would visit him in Hong Kong about once a year. According to the 1st plaintiff, when the wife of the deceased came to visit him in Hong Kong, the 1st plaintiff would, at the behest of the deceased, temporarily stay away from the deceased's flat until the wife left. After the wife of the deceased had left Hong Kong, the 1st plaintiff would resume her co-habitation with the deceased in his flat.

64. Although the defendant does not dispute the fact that the deceased and the 1st plaintiff had lived together in the same household sharing the same bed since mid-1991, the argument put forward by the defendant on this issue is that they did not live as husband and wife because the deceased had kept the existence of the 1st plaintiff a secret from his wife and daughter suggesting that the 1st plaintiff was no more than a mistress. The defendant further relies on the fact that the 1st plaintiff had used the term "boyfriend and girlfriend" to describe her relationship with the deceased when in the witness box to support his contention that the 1st plaintiff and the deceased did not live "as husband and wife".

65. I am unable to accept that argument of the defendant which is based on only one part of the evidence. When the entirety of the evidence is looked at, particularly the evidence of Mr Colin Clarke and Mr Ian Foster, two of the deceased friends in Hong Kong, and which evidence I accept, the 1st plaintiff's existence and the fact that the deceased was co-habiting with her in Hong Kong was something well known and accepted not only to the deceased's circle of friends in Hong Kong but also his colleagues at work. From the point of view of these people, the only conclusion that can be arrived at was that the deceased and the 1st plaintiff was living as husband and wife and that the only thing missing was a marriage certificate. Even if the 1st plaintiff's existence was kept a secret from the wife and daughter of the deceased, it cannot make any difference to the fact that they were living as husband and wife.

66. As for the second point, I can well understand the use of that loose term "boyfriend and girlfriend" by the 1st plaintiff, being a layman, when giving evidence in court in the absence of any marriage certificate. However, it is not how the relationship between the deceased and the 1st plaintiff is labelled by the 1st plaintiff, but rather the reality of that relationship as shown by the evidence and how it is looked upon by third parties which matters.

67. For these reasons, I find that the 1st plaintiff was living with the deceased in the same household immediately before the accident and had been doing so since about mid-1991 as the wife of the deceased and therefore comes within the definition of a "dependant" of the deceased under the Fatal Accidents Ordinance.

68. I turn now to deal with the amount of the loss of dependency.

69. The case was opened by counsel for the 1st plaintiff on the footing that the monthly amount of the dependency the 1st plaintiff received from the deceased was $9,000.00 at the time of the accident, together with other irregular amounts being gifts to the 1st plaintiff by the deceased. The $9000.00 was made up by the deceased paying a monthly sum of $4,000.00 to the deceased and letting her pocket the $5,000.00 rental received by sub-letting one of the bedrooms in the flat that they occupied.

70. This was also the footing upon which leave was sought and granted to re-amend the 1st plaintiff's statement of damages at the start of the trial. That is also what is stated in her witness statement.

71. However, this scenario as to the $9,000.00 monthly dependency changed very quickly when the 1st plaintiff took the witness stand. Her oral evidence given in court was that the deceased was paying her $10,000.00 and more per month at the time of the accident, and on top of that, she was allowed to keep the rental of $5,000.00 each month. Bearing in mind that she was already earning some $7,000.00 per month from Japanese families. Most if not, all of these monies were used by her either on herself or remitted back to the Philippines to support her family which consisted of her three children, her mother and her two sisters.

72. The 1st plaintiff's bank account passbook for her account in Hong Kong does not go anywhere near to show that she was receiving some $22,000.00 every month. Her explanation for this was that the moneys were given to her in cash and she had to use or spend it almost immediately each month so that very little of it was deposited into her bank account in Hong Kong.

73. The 1st plaintiff also called her eldest daughter and her two sisters to give evidence to support her claim that she had to remit large sums of moneys back to the Philippines each month to support them there. However, their oral evidence given in court bore little resemblance to the contents of each of their witness statement and, even worse, often contradicted the evidence of each other on important aspects such as the amounts received, how it was received, who the money was remitted to. There was also discrepancies in their evidence as to where the family was staying and the number of people in the family. This last discrepancy no doubt came about because the 1st plaintiff had formulated her case on the basis that all the members of her family in the Philippines who depended on her for financial support lived together in one household.

74. Moreover, none of these witnesses could produce even one single bank passbook or statement of account to show the remittances from the 1st plaintiff for those several years up to the accident. Indeed no documents from any banks were produced to support this part of the 1st plaintiff's case save her own bank account passbook.

75. All these discrepancies and contradiction in their evidence lead me to the inescapable conclusion that their evidence of the large amounts of financial support from the 1st plaintiff each month was a concoction to exaggerate the amount of the loss of the 1st plaintiff had suffered. In the circumstances, I am not prepared to rely on any of that evidence showing that the 1st plaintiff was paid anything more than the $4,000.00 per month by the deceased, even on balance, unless there is some support for it.

76. Having said that, I do however accept that the deceased did pay the 1st plaintiff $4,000.00 per month right up to the time of the accident. This is supported by the written contract of employment between them signed by the deceased. As I have already stated above, this $4,000.00 may well have started as salary to the 1st plaintiff under that written contract. However, as time progressed, the character of that $4,000.00 changed because of the relationship the two of them were in. Because of that relationship, the 1st plaintiff was not regarded as a domestic helper by the deceased and was therefore able to go out to earn extra money by working for Japanese families.

77. I also accept that, at some stage in their relationship, the deceased did allow the 1st plaintiff to rent out one of the bedrooms in their flat and to pocket the rental of $5,000.00. Support for this could be found in the evidence of Mr Colin Clarke that he paid rent of $5,000.00 for that room and paid it to the 1st plaintiff. It is because this arrangement was come to between the 1st plaintiff and the deceased which suggests, more likely than not that the deceased either would not or could not pay the 1st plaintiff anything more than the $4,000.00 per month, bearing in mind that he still had a wife and daughter to support back in the United Kingdom.

78. As for the gifts of moneys which the 1st plaintiff says was given to her by the deceased each time he had to leave Hong Kong to work, that again is not supported by other evidence apart from what the 1st plaintiff says. In her oral evidence from the witness stand, the character of these sums changed from being a gift to being moneys for her living expenses when he was away. Since the deceased was never away for longer than several days to at most two weeks, and the 1st plaintiff was earning from her work and receiving the rentals for the room, I can see no justification that the deceased needed to provide her extra cash each time he left Hong Kong. Again, I am not prepared to accept that evidence of these extra payments.

79. There is, however, evidence from Mr Ian Foster that the deceased would go out with the 1st plaintiff to socialise together with friends sometimes in the evenings and weekends, and the deceased would pay all the expenses of the 1st plaintiff on these occasions. This is reasonable, particularly, since they were living as husband and wife.

80. I therefore come to the conclusion that the amount of the dependency that the 1st plaintiff was receiving from the deceased at the time of the accident comes to the $4,000.00 paid by the deceased each month, the rental of $5,000.00 and a further $2,000.00 being monthly expenses for social occasions. This comes to $11,000.00 per month.

PRE-TRIAL LOSS OF DEPENDENCY

81. Fifty-six months have passed since the accident. Therefore the pre-trial loss of dependency comes to $11,000.00 x 56, giving $616,000.00.

FUTURE LOSS OF DEPENDENCY

82. It is agreed between the parties that the date of birth of the deceased is 16 April 1950 and that of the 1st plaintiff is 7 June 1956.

83. As for the multiplier, the 1st plaintiff has suggested a multiplier of 14 on the basis that the deceased, aged 46 at death, would have another 14 years of working life left even if he retired at age 60, albeit there is no evidence as to the retirement age in relation to the job the deceased was doing.

84. On the other hand, the defendant says that the multiplier should be not more than 6, taking into account the fact that there is no real bondage in the relationship between the 1st plaintiff and the deceased; that either the deceased may leave the 1st plaintiff and return to his wife in the United Kingdom or the 1st plaintiff may leave him at some stage.

85. Taking into account both these submissions and in all the circumstances of this case, I am of the view that a multiplier of 10 would be reasonable for the purpose of calculating the damage under this head.

86. As for the multiplicand, I would use the same multiplicand as for pre-trial loss of dependency.

87. Accordingly, the loss of future dependency comes to $11,000.00 x 12 x 10, less the 56 months of pre-trial loss, which gives $704,000.00.

CONCLUSION

88. To conclude, a summary of the amounts assessed above is as follows :-

PSLA		HK$600,000.00
Loss of earnings
	a. Pre-trial	HK$392,000.00
	b. Future	HK$720,000.00
Special expenses
	a. Agreed	HK$42,461.70
	b. Air fares	HK$12,230.00
	c. Personal items	HK$6,650.00
	d. Medication	HK$5,344.00
Future expenses
	a. Operation	HK$40,000.00
	b. Air fares	HK$2,500.00
	c. Insoles	HK$2,400.00
	d. Medication	HK$5,000.00
Loss of dependency
	a. Pre-trial	HK$616,000.00
	b. Future	HK$704,000.00

INTERESTS

89. Interests at the rate of 2% per annum will be awarded on the general damages of $600,000.00 for pain suffering and loss of amenities from the date of Writ until judgment.

90. Interests at the rate of 6.25% per annum will be awarded on pre-trial loss of earnings, all special damages and pre-trial loss of dependency from the date of the accident until judgment. The mathematical calculation for the interests can be left to the solicitors for the parties to work out.

COSTS

91. There will be a costs order nisi that the defendant pays the costs of the assessment, to be taxed if not agreed.