WONG PO YING AND OTHERS v. LI SZE KWAI AND ANOTHER

1988 No.A2642

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 1st September 1986 the deceased, in the course of his employment as a container truck driver, was waiting in the cab of his truck while a 20-foot container on the the rear of his truck was being loaded from the wharf of the 2nd Defendant's godown on Tsing Yi Island onto a dumb steel lighter moored at the wharf. The crane of the lighter was being used to load the container and in the course of the loading operation the lighter listed towards the wharf and a container on board the lighter toppled over and crushed the cab of the deceased's truck on the wharf causing severe injuries to the deceased from which he died later the same day.

2. The Plaintiffs are the administratices of the deceased's estate and include his wife. The 1st Defendant was the master of the lighter and was operating the crane of the lighter at the time of the accident in the course of his employment as the servant or agent of the 2nd Defendant which was the owner of the said lighter.

3. A writ was issued on 12th April 1988 and notice of intention to defend this action in negligence was filed on behalf of the lst and 2nd Defendants by their solicitors. Judgment was entered by consent on 16th May. 1988 against both the lst and 2nd Defendants with damages to be assessed by a Master and for costs to be taxed.

4. At this assessment of damages on 9th September 1988 respective Counsel for the parties had agreed on the following matters:-

(1)     That the award for loss of expectation of life would be $20,000.00.

(2)     That the special damages relating to the funeral expenses of the deceased would be $20,000.00.

(3)     That the multiplier to be applied in assessing the award for loss of future earnings was 12.5.

(4)     The free balance of the deceased's salary at the date of his death on lst September 1986 was to be 64%.

5. The only remaining issues between the parties on this assessment were:-

(1)What would the deceased's salary be likely to be at the date of this assessment and to be used in calculating his future loss of earnings?

(2)What percentage figure should be used in calculating the free balance of the deceased likely earnings at the date of assessment

6. Counsel for the Plaintiff produced a Bundle of 11 documents extending to 26 pages in all. Only documents 10 and 11 were not consented to by Counsel for the Defendants these documents were letters from he employer of the deceased setting out details of the deceased's earnings between September 1985 and August 1986 in Document 10 and the details of the earnings for 1988 of 3 employees of the same company engaged about the same date as the deceased.

7. The first witness called by the Plaintiffs was CHAN Wing Hung, an assistant manager of Dawin Transportation Co. Ltd. the employer of the deceased, and this witness produced documents 10 and 11 in the Bundle of Documents as Exhibits P1 and P2 respectively This witness claimed that he knew the deceased who had the reputation of being very hard-working and that he did not gamble with the other drivers while waiting for their next driving assignment.  He confirmed that the deceased commenced employment with Dawin Container Transportation Co. Ltd. about April 1984. Mr. CHAN confirmed that he had completed the particulars of earnings in Exhibits P1 and P2 which had both been signed by the managing director of the company, Mr. C.Y. HUNG This witness confirmed that the basic salary of the deceased would, be either $4,320.00 or $4,420.00 per month if he had still been employed by the same employer. The basic salary of the deceased at the date of his death was $3,400.00 as set out in Exhibit P1. However, Mr. Chan in his evidence confirmed that the allowances and overtime payments to container truck drivers were substantial and that the quantum of allowances and overtime depended on the driver's work assignment. The better container truck drivers, in the sense of being hard-working with good work performance, were allocated the more lucrative assignment of transporting containers from the Tuen Mun Pier to the company's container terminal nearby which did not involve travelling a great distance on the road. Other container truck drivers with poorer work performance records would be assigned to deliver containers from the Company's container terminal to customers anywhere in the regional area of Hong Kong including the New Territories and Kowloon. As one of the allowances granted by the company related to the number of containers delivered each day, obviously the driver with the shorter distance to travel would earn a higher allowance. Eventually evidence was obtained from Mr. CHAN setting out full details of the various allowances and overtime payments made to container truck drivers. From this evidence it was established that the allowances and overtime in the sums set out for employees WONG Ho Keung at (A) and, CHOW Ming of (C), in Exhibit P2 could be earned over a 26 day working month. These figures indicate that the allowances and overtime payments paid to these employees almost doubled their basic salaries in particular months and for every month during 1988 had exceeded their basic salaries; The salaries of these employees had been selected for comparison on the basis that they had been engaged by the employer about the same date as the deceased. The employer CHAN Kwong Sang at (B) in Exhibit P2 was employed on container deliveries to customers and earned less than his basic salary in allowances and overtime payments. The evidence of this witness is accepted as being truthful and the documentary exhibits produced are accepted as correct as he stated that the information set out therein had been prepared from the accounting records of the company. Apart from giving somewhat speculative answers to questions which appeared to be based on hearsay evidence of site supervisors relating to the performance of company employees, this witness was impressive and objective in giving his evidence and there was no reason not to accept his testimony as being credible. In particular, his evidence is accepted that the deceased was hard-working with good work performance while employed by the company and that he would most likely have been employed in the more lucrative Tuen Pun Pier container delivery work since July 1987 when the work became available.

8. In assessing the present earnings of the deceased the figures set out for the two higher paid employees WONG and CHOW in Exhibit P2 will be relied on for comparison purposes. The basic salary for the deceased will be set at slightly lesser figure of $4,320.00 being the basic salaries of the two comparable employees referred to. From the evidence of Mr. Chan for the Company there appeared to be special circumstances in the case of the employee Chan for a slightly higher basic salary ($100.00) since the date of his engagement. To assess the allowances and overtime payments likely to have been earned by the deceased if he was still employed by the company, an average will be taken for the months of June, July and August of this year of such payments as set out for the comparative employees WONG and CHOW in Exhibit P2. In other words, an average will be taken from the total of six allowance and overtime figures for the last 3 months. On this basis the average for allowances and overtime is rounded off at $7,085.00. The present earnings of the deceased are therefore arrived at by adding the basic salary of $4,320.00 to the average allowances and overtime figure of $7,085.00 to give a total of $11,405.00.

9. To assess the pre-assessment loss of earnings both Counsel for the parties in their calculations relied as their starting point on the average monthly salary earned by the deceased over the 12 month period prior to his death. There appears to be no justification or authority to accept this lower starting point of $5,177.45 and the actual salary earned by the deceased in August 1986 of $6,064.05 will be accepted as the more appropriate starting point. This figure is made up of basic salary of $3,400.00 and allowances of $960.30 and an overtime payment of $1,703.75 as set out in Exhibit Pl. The median of the deceased's salary at the date of his death at $6,064.05 and the calculation of the deceased's present salary at $11,405.00 is $8,734.50. To this median salary the agreed free balance of 64% is to be applied over the pre-assessment period of 24.3 months since 1st September 1986. The award of pre-assessment loss of earnings is arrived at as follows:-

10. $8,734.50 x 64% x 24.3 months = $135,839.00.

11. The other issue in dispute at this assessment was the free balance to be applied to the post-assessment loss of earnings. In this respect the widow of the deceased, WONG Po Ying, gave evidence that she had married the deceased in 1980 and they had 2 children of that marriage The elder male child who was born in 1983 is seriously mentally retarded and is cared for during the week at the Caritas Medical Centre and only comes home on weekends to be with the family.   The hospital expenses relating to their son are $300.00 a month but a disability allowance of $510.00 a month for the son is paid to the widow. The younger female child is normal and was born in 1985. The witness described the deceased as a good husband and father who did not drink alcohol, smoke or gamble. After some probing the witness admitted that her husband provided about $4,000.00 a month from his monthly salary of approximately $6,000.00 to provide for the upkeep and maintenance of the family. The witness said she was 35 years of age and that she was not employed. The witness claimed that the family expenses would increase as the children grow older. She also stated that her son would be cared for at the Caritas Medical Centre until he was 16 years of age but that his future after that was uncertain.

12. Counsel for the Plaintiff urged the Court to increase the multiplicand by 15% in assessing the post-assessment loss of earnings to reflect deceased's future increases in earnings arising from anticipated increases in both basic salary and allowances over the balance of the multiplier period. Counsel was unable to produce any authority for such a proposition to which the conventional answer is that the future loss of earnings will be paid in a lump sum in advance of becoming due. Counsel for the Plaintiffs also submitted that the free balance of 64% used for assessing past earnings should be increased to 75% to assess the future earnings award. The basis for this submission was that the deceased was likely to contribute more towards the family expenses as the children grew older and those expenses increased. Counsel relied on the conventional award of 75% in the United Kingdom as set out in the Court of Appeal decision of Harris v. Empress Motors Ltd. [1984] W.L.R. 212. However, this case is not authority for the conventional award in U.K. being applied in Hong Kong as pointed out by Counsel for the Defendants in relying on the Hong Kong Court of Appeal decision of WONG SHU MAN v. WU KWOK YAU SIMON being Civil Appeal No.97 of 1984 and in particular the judgment of Justice of Appeal Cons. It is well known and accepted that the conventional figure in Hong Kong is 55%.

13. As Counsel for the Defendants pointed out the Court is engaged in educated guesswork in deciding upon the future needs of the deceased's family and how he would have provided for those needs from his earnings. As was conceded there are arguments both for increasing the free balance and for retaining the agreed figure to apply to post-assessment loss of earnings. There is evidence that the deceased had no bad habits and, in particular, that he did not gamble and that he had managed to accumulate limited savings prior to his death as shown by his Savings Passbooks exhibited as documents 3 and 4 in the agreed Bundle of Documents produced. For the aforesaid reasons and because of the serious disability of the deceased's 5 year old son the free balance figure will be increased to 70% In assessing the future' loss of earnings. Future loss of earnings award will be assessed as $1,003.525.90 under the following formula:-

Assessed present salary of the deceased ($11,405.00) applied to the increased free balance figure of 70% over the balance of the agreed period (12.5 x 12 - 24 .3 months, =125.7 months) - ($11,405.00 x 70% x 125.7 = $1,003,525.90).

14. A summary of the damages awarded on this assessment under LARCO areas follows:

(1)Loss of expectation of life	$20,000.00
(2)Special damages-Funeral Expenses	$20,000.00
(3) Pre-assessment loss of earnings	$135,839.00
(4) Future loss of earnings	$1,003,525.90
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	$1,179,364.90
Less Employees' Compensation, Award	$299,000.00
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	$880,364.90
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15. This award under LARCO will merge with any claim under FAO as the only beneficiaries are the widow and two young children of the deceased, who died intestate. However the usual apportionment order of the award should be made to protect the interests of the children. Accordingly half of the total award, less the special damages for funeral expenses and, plus the first $50,000.00 will be awarded- to the widow being the sum of $475,182.45 ($880,364.90 - $20,000.00 - $50,000.00) ÷ 2=$405,182.45 +$20,000.00 + $50,000.00 =$475,182.45) The two children are to share the balance of the award, being the sum of $202,591.22 each which sums are to invested with the Registrar of the Supreme Court on the usual terms until the daughter, LI On Ki, attains her majority and in the case of the son, LI Kai Ming, until he has attained his majority and is no longer under disability.

16. Interest will be fixed at 2% per annum on the damages for loss of expectation of life from date of writ to the date of this assessment. Interest on the funeral expenses and pre-assessment loss of earnings are fixed at 3 1/16% from the date of the accident to the date of this assessment. There will be no interest allowed on the future loss of earnings award.

17. The Plaintiffs' costs are to be taxed and paid by the Defendant and the Plaintiffs' own costs are to be taxed in accordance with Legal Aid Regulations.  There will be a certificate granted for Counsel for the Plaintiffs in respect of this assessment of damages