KUNG PIK TO v. AU KAM FAI

HCPI 545/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 545 OF 2000

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Assessment of Damages

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1. The plaintiff is the wife and administratrix of the estate of the deceased Ng Ping To ("the deceased"). The plaintiff brings this action against the defendant on behalf of the dependants and estate of the deceased under the Fatal Accidents Ordinance Cap. 22 ("FAO") and the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 ("LARCO").

2. The deceased was a taxi driver. On 13 February 1998, the deceased had an argument with the defendant at near No. 35, Lion Rock Road, Kowloon City. The argument was over the driving manner of the defendant who was at the material time driving his van behind the deceased's taxi. The argument later developed into a fist fight between the deceased and the defendant. In the course of the commotion, the deceased was punched on the head a few times by the defendant. He fell to the ground and lost consciousness. Police was then called and the deceased was taken to the Queen Elizabeth Hospital. Upon arrival at the hospital, the deceased was certified dead. The deceased was aged 40 at the time of death. He was survived by his wife and two young children.

3. As a result of the incident, the defendant was charged with the offence of manslaughter and was convicted. He was sentenced to two years' imprisonment.

4. By a writ of summons issued on 10 May 2000, the plaintiff, on behalf of the dependants and estate of the deceased claimed against the defendant for damages under the provisions of FAO and LARCO. On 12 October 2000, Interlocutory Judgment in default of a defence was entered against the defendant with damages to be assessed. This is the hearing of the assessment of damages.

5. Pursuant to the order of Master Cannon dated 9 November 2000, the plaintiff filed and served her lists of documents for the assessment of damages. Hearsay notice was also filed and served, but no counter-notice was served by the defendant. At the hearing, I admit the documents set out in the hearsay notice as evidence.

The Evidence

6. At the assessment hearing, the defendant was absent. The plaintiff gave evidence and confirmed the contents of her statement dated 24 August 2001 as true and correct.

7. According to the plaintiff, she married the deceased in Hong Kong on 16 April 1984. She was a dependant of the deceased. All along she was a housewife looking after the family and their 2 children namely a daughter, Ng Kei Ching Christy, and a son, Ng Ka Chun. At the time of the deceased's death, the 2 children were at their respective age of 11 and 7. They were in full time education and were dependants of the deceased.

8. The plaintiff states that the matrimonial home where the family resided, and continues to reside, was purchased by the deceased in February, 1987 under the Home Ownership Scheme at the price of $270,300. It was bought in the joint names of the deceased and the plaintiff with a mortgage taken out with Hang Seng Finance Limited. The down-payment for the matrimonial home was paid by the deceased who was also responsible for the monthly mortgage of $2,498.80. At the time of death, the outstanding mortgage amounted to $105,730.87. It would be fully repaid in September, 2002.

9. According to the plaintiff, the deceased earned a monthly sum of $10,000. This was received in cash. Out of his income, the deceased used to give her about $8,000 to pay for the monthly mortgage, the household expenses including the school bus fare for the 2 children. In addition, the deceased gave the children $250 each as pocket money. The plaintiff states that the monthly household expenses at the time of the incident were as follows:-

Mortgage payment	$2,498.80
Management fee	$495.00
Rates	$351.00
Water charges	$136.00
Electricity charges	$181.00
Telephone	$105.00
Food	$3,000.00
Gas	$324.20
School bus fare (for the children)	$550.00
Miscellaneous expenses	$500.00
	$8,141.00

10. The plaintiff describes the deceased as a hard-working and frugal person. She states that before his death, the deceased had maintained a time deposit of $50,000. This saving was accumulated by the deceased over a period of 5 years. Together with the balances in his other accounts, the deceased had a saving of not less than $60,000 at the time of his death.

11. The plaintiff says that if not for his death, the deceased would have continued to work and support the family until he reached the retirement age of 65. He would have continued to support the children until they completed their full time education.

12. The plaintiff claims for a sum of $43,647 as funeral expenses for the deceased.

Loss of Dependency Claim under FAO

13. On the unchallenged evidence of the plaintiff, I accept that before the deceased's death, the plaintiff and the 2 children Ng Kei Ching and Ng Ka Chun, were dependants of the deceased. At the time of his death, the deceased was earning a monthly sum of $10,000 out of which he gave $8,000 to the plaintiff to pay for the household expenses. He further gave $250 to each of the children as their pocket money. On the basis that Mr. Szeto, solicitor for the plaintiff, would not seek for any annual increase in the deceased's earning from the date of death, I would use the monthly income of $10,000 for the assessment of damages herein.

14. In assessing the loss of dependency, I will adopt the flexible approach used by Mr. Justice Seagroatt in the case of Tang Mei Ying & Another v. Lam Pak Chiu & Another [1999] 2 HKLRD. At page 814 thereof, Seagroatt J. states:-

"The only realistic approach is to calculate the actual sum out of the deceased's earnings which represents the total dependency and make adjustments to reflect that sum which properly represents, as nearly as can be estimated, his own benefit - the whole exercise is essentially an estimate based on common sense or conventional wisdom. There must then be adjustments or a cut-off as the picture of family dependency changes. This is the approach I have adopted because it more accurately reflects a true household economy and the way parents view and treat their children rather than the mathematical division."

15. On the evidence of the plaintiff, I accept that the deceased's share on food and miscellaneous expenses amounts to $875 [i.e. ($3,000 + $500) ÷ 4]. Deducting this figure of $875 from the sum of $8,000 paid to the plaintiff as monthly household expenses, and having made adjustments to the sum of $550 being the bus fare paid to the children ($275 each) and the sum of $250 paid to each child as pocket money, the pre-trial dependency (from date of death to date of assessment which are 46.2 months) would be calculated as follows:-

Pre-trial loss of dependency

a) The Plaintiff

($8,000 - $550 - $875)/3 = $2,192

$2,192 x 46.2 months = $101,270

b) Ng Kei Ching

($8,000 - $550 - $875)/3 + $275 + $250 = $2,717

$2,717 x 46.2 months = $125,525

c) Ng Ka Chun

($8,000 - $550 - $875)/3 + $275 + $250 = $2,717

$2,717 x 46.2 months = $125,525

16. The deceased was aged 40 at the time of death. Having considered the authorities submitted, I think it is reasonable to adopt a multiplier of 12. It is also reasonable to assume that the deceased would continue to support his wife if not for his death. According to the documentary evidence, the plaintiff was aged 40 at the time of the deceased's death.

17. As for the daughter and the son are concerned, they were respectively 11 and 7 years old at the time of death of the deceased. I accept a respective multiplier of 7 and 11 as suggested by Mr. Szeto.

18. On the mortgage repayment, Mr. Szeto submits to the court that the mortgage on the matrimonial home would be fully repaid in September 2002. As such, the dependency of the plaintiff and the children should be reduced by $833 each (i.e. $2498.80 ÷ 3). I agree.

19. On the basis of the above, the post-trial loss of dependency would be calculated as follows:-

Post-trial loss of dependency

a) The Plaintiff

(i) from December 2001 to September 2002

$2,192 x 10 months = $21,920

(ii) from September 2002 onwards

($2,192 - $833) x (144 - 10 - 46.2 months) = $119,320

Total: $21,920 + $119,320 = $141,240

b) Ng Kei Ching

(i) from December 2001 to September 2002

$2,717 x 10 months = $27,170

(ii) from September 2002 onwards

($2,717 - $833) x (84 - 10 - 46.2 months) = $52,375

Total: $27,170 + $52,375 = $79,545

c) Ng Ka Chun

(i) from December 2001 to September 2002

$2,717 x 10 months = $27,170

(ii) from September 2002 onwards

($2,717 - $833) x (121 - 10 - 46.2 months) = $122,083

Total: $27,170 + $122,083 = $149,253

Loss of Accumulation of Wealth under LARCO

20. On the evidence of the plaintiff, which is supported by bank records, I accept that the deceased was a frugal and hard-working person. He had a habit of saving for the future. For a period of 5 years, he was able to accumulate savings in the sum of $60,000. This, according to Mr. Szeto, amounts to a saving of $1,000 a month. Based on this sum of $1,000, Mr. Szeto produced a figure of $144,000 (i.e. $1,000 x 12 x 12 months) which, he submits, represents part of the deceased's loss of accumulation of wealth.

21. On the other hand, Mr. Szeto submits that when the children complete their education and become more self-sufficient, their dependency on the deceased would diminish. This would allow the deceased to have more money to save and such money should also form part of the deceased's accumulated wealth. According to Mr. Szeto, after the daughter has completed her education, the deceased would be able to save the money representing the daughter's share of dependency. This amounts to a total sum of $163,020 [i.e. $2717 x 12 x (12 - 7)]. As for the amount representing the son's share of the dependency, it would work out to be $32,604 [i.e. $2717 x 12 x (12 - 11)].

22. By the same token, Mr. Szeto argues that when the mortgage on the matrimonial home is fully repaid in September 2002, the mortgage repayment of $2,498.80 would become the increased savings of the deceased. This again amounts to $329,842 [i.e. $2,498.80 x 12 x (12 - 1)]. Based on the above calculations, Mr. Szeto submits that the total loss of accumulation of wealth of the deceased would amount to $699,466 (i.e. $144,000 + $163,020 + $32,604 + $329,842).

23. I agree that the deceased would have more money to save when the mortgage on the matrimonial home is fully repaid. The same applies when the children completed their education and become financially independent. But I think it is unrealistic to assume that the deceased would have saved every single cent as per the calculation of Mr. Szeto above. It is also unreasonable to assume that the deceased would not have spent any of this extra money available for his own benefit or for the family. Indeed, and according to the evidence of the plaintiff, the children may continue with their education in the university after completing the secondary school. If that is the case, the period of their dependency would have to be extended.

24. In my judgment, it may not be appropriate to adopt a simple mathematical approach to calculate the loss of accumulation of wealth as proposed by Mr. Szeto above. As pointed out by Mr. Justice Bokhary PJ in Lam Pak Chiu & Tsang Mei Ying & Another [2001] 1 HKLRD at page 207, he states that:-

"Finding a multiplier for a loss of accumulation of wealth award would present no greater difficulty than finding a multiplier for a loss of dependency award. But finding a multiplicand for a loss of accumulation of wealth award would be very difficult, to say the least. Except in cases where there is something more to go on than one has in those cases where the court is driven to taking an almost arbitrary percentage of earnings as a multiplicand, Judges and masters calculating such awards would be well-advised to make global awards. This is not to say that a conventional figure across the board ought to be adopted. Nor is it to say that a figure should be plucked out of the air. Even where the exercise does not lend itself to the precision of a multiplicand as in loss of dependency claims, some process of ratiocination must underlie the global award made. And it is necessary that the judge or master indicate at least in general terms how the award has been assessed in the light of the relevant factors, including expenditure during the retirement years" (italics supplied).

25. As for the present case is concerned, I think it is not appropriate to adopt the multiplicand of $2,717 (representing each of the children's share of the dependency) for calculating the loss of accumulation of wealth. This figure of $2,717 has, in fact, included part of the management fee, rates and other utility charges paid. These fee, rates or charges, which may be labelled as "the fixed costs" for the matrimonial home, would still be required to be paid by the deceased irrespective of whether the children have become financially independent or not. These fee, rates or charges could not be saved as submitted by Mr. Szeto. Further, this multiplicand of $2,717 has included part of the monthly mortgage repayment which also overlaps with Mr. Szeto's calculation of $329,842 above namely the increased savings after the mortgage has been fully repaid.

26. I accept that the deceased was a frugal person and that he had a saving habit. But on the evidence, I am not satisfied and have doubt that the deceased was able to make any saving with an income of $10,000 a month at about the time of his death. According to the plaintiff, the deceased gave her $8,000 as household expenses. He further gave $500 to the children as pocket money. If he was to save up $1,000 a month, he would only be left with $500 to spend each month. I do not think that is in reality quite possible. Indeed, from the bank account of the deceased (ie. HSBC savings account No.: 475-9-003165), there is no record of new deposits nor evidence of any savings for almost a year from 22 December 1997 up to the time of death of the deceased in December 1998. In my view, the deceased was able to save $50,000 over a 5 year period because prior to 22 December 1997, he was, on average, earning more than $10,000 a month. For some months, he was receiving a monthly income of $13,000.

27. However, having considered the evidence and all the circumstances, I am prepared to accept that after the mortgage for the matrimonial home has been fully repaid in September 2002, the deceased would be able to accumulate some savings. These savings would be slightly increased when the children have become financially independent. And having taken an overall view of the matter, including the poor economic climate of the last 2 to 3 years which may affect the income of a taxi driver, I think it is reasonable to expect the deceased to have saved as from January 2003 a sum of $2,000 a month out of his income of $10,000. As such, I will make an award of loss of accumulation of wealth in the sum of $192,000 [$2,000 x 12 x (12 - 4)]. I will not make any finding on the expenditure incurred during the deceased's retirement as the issue has not been raised. As pointed out by Mr. Justice Bokhary PJ in the case of Lam Pak Chiu (supra), the burden on this issue lies on the party who asserts.

Bereavement

28. I allow this claim which is at the statutory figure of $150,000.

Funeral expenses

29. This claim is supported by documentary evidence, I also allow the sum of $43,647 as claimed.

Summary

30. The total award would be as follows:-

a)	Loss of dependency
	Pre-trial loss	$352,320
	Post-trial loss	$370,038
b)	Loss of accumulation of wealth	$192,000
c)	Bereavement	$150,000
d)	Funeral expenses	$43,647
		$1,108,005

Interest

31. There will be interest on pre-trial loss of dependency and on the funeral expenses at half the judgment rate from date of death to date of assessment.

32. Interest for the bereavement award will be allowed at the judgment rate from date of death to the date of assessment (see Kwan Lai Kuen v. National Insurance Co. Ltd. [1998] 1 HKC 106.

Costs

33. I make an order nisi that the plaintiff shall have the costs of the assessment to be taxed if not agreed and that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.