SHEK CHOR TAI v. YA LEE CONSTRUCTION CO LTD

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION No. 757 of 1998

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ASSESSMENT OF DAMAGES

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1. The defendant was the principal contractor of a construction site at Choi Wan Estate. The deceased was employed by the defendant and drove a concrete mixer truck within that construction site. At around 11:30 am on the 2nd September 1995, the deceased was injured in an accident at work. He was sent to the United Christian Hospital, but was certified dead on arrival.

2. This action is brought by the Administratrix of the estate of the deceased for the dependants of the deceased under the provisions of the Fatal Accidents Ordinance Cap 22 "FAO" and for the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance Cap 23 "LARCO".

3. By a Consent Order dated the 4^th of September 1998, judgment on liability was entered against the defendant in favour of the plaintiff to the extent of 90% with damages to be assessed.

4. The plaintiff is the widow and Administratrix. She was a housewife, and was born sometime in 1942. At the time of the accident, 2 grown-up children were living with them in Shun Lee Estate. These were the elder son Lee Wai-keung (born on 28.9.64) and the younger daughter Lee Yuk-lin (born on 26.5.70).

5. The widow gave evidence and called 4 other witnesses.

6. The widow told the court that the deceased used to give her $5000 every month for household expenses. On top of that sum of $5000, the deceased also paid for the utility charges. She was cross-examined on this. The documentary evidence showed that she had told the Social Welfare worker (page 15 of Agreed documents) that the deceased only gave her $4000 a month. In addition, in a statement to a representative of the Loss Adjusters sent by the insurance company (page 19 of Agreed documents) she had also said that the deceased only gave her $4000 a month.

7. As to her personal circumstances, the widow told the court that due to asthma and attacks of gout. She had not been working for about 7 years prior to the accident. She said that she suffered from bouts of sickness as often as three times a month. On those occasions she would consult local doctors privately, and then ask the deceased to recompense her for these medical expenses. These consultations cost about $140 per visit. All in all the deceased paid for her medical expenses and spending money which amounted to about $10,000 a year.

8. The sum of $10,000 per annum referred to by the widow appears to be a reasonable one. Three visits to the doctor a month at $140 a visit would come to approximately $5040 a year. If the deceased gave her the balance of that sum as spending money, it would only amount to about $413 a month.

9. I find on the evidence that the deceased gave the widow $5000 a month, comprising of the $1000 for the utility charges, and $4000 for household expenses. In addition the deceased also gave the widow about $10,000 a year for medical expenses and spending money.

10. I find on the evidence that the deceased was a dutiful husband and father. He was responsible and hardworking. Other than indulging in small bets on the horses and smoking cigarettes, he led a frugal life. I accept the widow's evidence that he was unable to save any money due to the: discharge of his responsibilities to his family.

11. PW3 Ms Lee Yuk-lin is a daughter of the deceased. At the time of the accident she was a secretary earning $9000 per month. She had been contributing $3000 per month towards the household expenses. PW3 had no first-hand knowledge of the details of the family's expenses until after the death of the deceased.

12. PW4 Mr Lee Wai-keung was the son who lived with the deceased in Shun Lee Estate at the time of the accident. At the time of his father's death in 1995 he was 31 years old. He said that when he was able to hold down a job he would contribute $1000 to family expenses, but he alleged that he was always out of work. Whenever he was unemployed, instead of contributing to household expenses, the deceased gave him "pocket money" to the tune of $3000 a year. Although PW4 contended he had been unemployed, the agreed documents showed the contrary. They showed that he had been in continuous employment from 1993, working as a driver for a company called Win Label. At the time of his father's death, PW4 was earning about $3000 per month.

13. On the evidence I find that at the time of the accident, PW4 was contributing $1000 a month towards the household expenses. To the extent that PW4's modest contribution of $1000 was out-weighed by the benefits he derived from the comfort of living at home. PW4 had proved an element of dependency on the deceased. It was not substantiated that PW4 had been receiving $3000 pocket money from the deceased. This contention is simply not borne out by the evidence.

14. It was not contested that at the time of the accident the family expenses were about $9840 made up as follows:

15. The widow's monthly expenses at the time of the accident were:

16. PW1 was the mother-in-law of the deceased. She lived with her son in Aberdeen. She claimed that the deceased personally came to give her $500 a month. I did not believe that the deceased would travel all that way before he went to work just so that he could put $500 into PW1's hands. Common sense dictates against it. The deceased lived in Kwun Tong. PW1 lived in Aberdeen. There was no need for the deceased to make these long trips for the sole purpose of delivering money. Driving a concrete mixer truck is hard and strenuous work. The deceased would have had to get up at least 1 ½ hours earlier than usual for no good reason because, according to the plaintiff, she and the deceased visited her mother in Aberdeen twice a month in any event.

17. PW1 also contended that the deceased had been most filial and gave her sums of money at Chinese New Year and other festive occasions throughout the year, amounting to $5000.

18. The case of Chan Sim Lan v Sheen State International Ltd [1994] IHKC 460 was among the cases relied upon by the plaintiff. I found it surprising that the defence did not seek to rely on it to argue that a nonresident mother-in-law did not come within the definition of "dependant" as defined in s2(1) of the FAO. Counsel for the defendant merely argued that if PW1 was entitled to a dependency claim, it should be no more than $18.958.33 (i.e. $5000 x 45.5 months ÷ 12).

19. In the light of what was decided by Mr Justice Kaplan in Chan Sim Lan, PW1 does not come within the the definition of "dependant" in s2(1) of Cap 22. Even if I am wrong on that, the evidence was against such a finding, PW1 did not make a good witness. Her evidence on the $5000 a year was confused and hesitant. Moreover according to the widow's description of the deceased's finances, it was unlikely he would be able to be so generous, even to a mother-in-law he esteemed.

The deceased's earnings at the time of death

20. It was common ground that the deceased earned $10,621 per month at the time of his death.

What would the deceased have been earning now?

21. In order to show what the deceased would have been earning now, the plaintiff argued for a conventional increase of 10% per annum, submitting that this method of assessment was supported by the authorities, citing inter alia the cases of Kwan Wing Sang v Chi Chiu Engineering PI 1045/95 [1997] HKLRD H49 (unreported), Cheng Ching Muk v Wah Nam Travel Service [1999] IHKC 100, and Leung On v Chan Pui Ki (An Infant) [1996] 2HKC565. If a 10% increase was adopted, the deceased's salary would come to approximately $15,000 today. I do not think that a mechanical application of a 10% increase per annum is appropriate, especially in the light of the economic downturn in the last 18 months, and the recent announcement that there was a drop of 4% in the Consumer Price Index in May 1999.

22. I agree with Counsel for the defendant when he argued that any estimate of inflation has to be supported by evidence, citing Mr Justice Rodgers' judgment in Cheng Sam Pak v Secretary for Justice [1998] 2HKC 551 at 558G.

23. The defence produced the Consumer Price Indices, and submitted that statistics showed an inflation rate of only 16% since September 1995. If the rate of 16% was adopted, the deceased's salary at trial would come to approximately $12,320 today.

24. As an alternative argument, the defence contended that the current wages of PW5 should be adopted. The current wages of PW5 (see below) is $13,000 a month. The plaintiff did not contest this method of assessing what the deceased would be earning today. As it would be more advantageous to the plaintiff than adopting a 16% inflation rate, $13,000 is the figure I will use.

25. PW5 Mr Shek Kwong-ming drives a concrete mixer truck for Yau Lee Construction Company. He is the younger brother of the widow, and a colleague of the deceased. PW5 said he was earning about $10,600 per month at the time of the accident in 1995. He is now earning about $13,000 per month inclusive of overtime pay. PW5 and the deceased were doing the same job. At the date of the accident their wages were practically identical. At that time the deceased earned $10,621 and PW5 earned $10,600. PW5 continued in the same employment and now earns $13,000. There is nothing to show that they would not be earning nearly identical wages today.

26. Therefore, for the reasons stated above, I am adopting the present wage of PW5, that is the sum of $13,000 per month as the amount the deceased would be earning now. In percentage figures, the deceased's earnings would have increased 122.5% since the accident.

The pre-trial period is agreed to be 45.5 months after the accident.

The pre-trial position is thus:

The monthly value of the each dependency at the date of the accident

27. At the rate of increase of 122.5% from the date of the accident, the value of each dependency on 16^th June 1999 would be:

28. The median for each pre-trial dependency would be:

The multiplier

29. The deceased was born on 10^th September 1937. He was only days short of his 58th birthday when he died. The plaintiff argued for a multiplier of not less than 8. citing cases from an extract of Kemp & Kemp submitted to the court.

30. The cases referred to did not support the plaintiff's case, because in each there was evidence adduced to show that in those particular circumstances, the deceased could rely on being employed beyond the age of 65. In Gumbrell v Olen [Kemp & Kemp M2-085] evidence was adduced to support the contention that he would have worked up to the age of 70. In Moss v Royle [Kemp & Kemp M2-166] the evidence showed that although the normal retiring age was 65, there was a possibility of work up to the age of 70.

31. In the present case no evidence has been adduced to show that the deceased would have worked until he was 65. I was asked to take judicial notice of the fact that construction site workers such as the deceased would normally work up to the age of 65. With respect to Counsel for the plaintiff I do not find that I can take judicial notice on this matter.

Phipson on Evidence 13^th Ed para 2-06 has this to say about taking judicial notice:-

"Courts will take judicial notice of... matters... so notorious or clearly established or susceptible of demonstration by reference to readily obtainable and authoritative source that evidence of their existence is unnecessary."

32. There is no "notorious or clearly established" matter here for the court to take judicial notice of.

33. The only evidence relating to the ages of concrete mixer truck drivers appears at page 57 of the Bundle of Agreed documents. This is a letter from Yau Lee stating that according to their records dating back several years, the average age of the concrete mixer truck drivers employed was 43, and the oldest was 58.

34. Counsel for the plaintiff referred to the Watson Wyatt Actuarial Tables. In the table of Multipliers for Loss of Earnings at page 19, the multiplier shown for a male aged 57 was 7.193. I noted that the multiplier for a male aged 58 was 6.362. and that the table was based on a working life of up to 65.

35. The defendant argued that a multiplier of 6 was appropriate. Counsel referred to Lee Ping Foon v Lee Hoi [1998] HKLRD E28 (aged at 55/57, multiplier of 4); The Kang Oh v Wong Yik Fai [1997] HKLRD L38 (aged at 57/60 multiplier of 4); Chan Kui v Lee Fai [1997] HKLRD D41 (aged at 57/61, multiplier of 4); Choi Chi Hung v Wong Kuen Bor (1997) HKLJ 107 (aged at 55/63, multiplier of 10 months).

36. In all the circumstances, I am persuaded that a multiplier of 6 is appropriate for the widow. I see no basis for taking a different multiplier for the son. He was already an adult and working man at the date of the accident, yet the deceased still supported him by subsidizing his living expenses. The evidence would tend to show that the deceased would have continued to subsidize his son for as long as possible.

The pre-trial loss is $294,723.73 (being $204,192.10+$90,531.63)

          the widow

          $3663.46 x 122.5% x 45.5 = $204,192.10

          the son

          $1624.25 x 122.5% x 45.5 = $90,531.63

The post-trial loss is $154,294.12 (being $106,898.88+$47,395.24)

          The window: multiplier of 6

          $4033.92 x 26.5 (balance of multiplier) = $106,898.88

          The son: multiplier of 6

          $1788.5 x 26.5 (balance of multiplier) = $47,395.24

Bereavement

37. Although the statutory sum of $70,000 for Bereavement was agreed, the applicable rate of interest was not. The plaintiff claimed the full statutory rate from the date of death to the date of trial. The defendant argued, on the authority of Kwan Lai Kuen v National Insurance Co Ltd [1998] 1 HKC 98, that the prevailing interest rate on suitor's funds should be applied. Having read Keith J's reasons for adopting the prevailing interest rate on suitor's funds, I respectfully follow his lordship's example. The prevailing interest rate on suitor's funds will be applied to this head of damage. I will leave it to the parties to calculate the actual amount of interest which the award for bereavement should attract.

Loss of Accumulation of Wealth under LARCO

38. It is well established that in order to succeed in a claim for loss of accumulation of wealth under s 20(2)(b)(iii) of LARCO, there must be evidence that wealth would have accumulated at the date of the natural death of the deceased.

39. Counsel for the plaintiff submitted that although a pattern of savings could not be established, the deceased had sums of over $50,000, over $40,000 and over $30,000 in his bank accounts in the last year of his life. However, counsel had to concede that there was only a total sum of $996 in his bank accounts at the date of his death.

40. Counsel asked the court to consider that evidence of a pattern of savings, while useful, was not essential in establishing a probability of accumulation of wealth, citing Ho Pang Lin & Anor (Co-Administrators of the Estate of Wong Hup Yim, deceased) v Ho Shui On [1994] 3HKC 294.

41. The evidence shows that at the date of his death, the deceased earned $10,621 per month inclusive of benefits. The sum of $58,041 in one bank account had been steadily drawn down to a mere $348.29 at the time of his death. Therefore the deceased's bank statements cannot show accumulation of wealth. His contributions to the household and utilities came to about $5000 a month. Payments to the plaintiff came to about $833 a month. By my reckoning, the deceased had about $4788 for his own use. Out of this the deceased would have to pay for his cigarettes, clothing, lunch money, and travel. If he smoked a packet of cigarettes every 2 days, it would have cost him about $375 a month. A modest $20 for lunch for a 26 day month comes to $520. If we set aside $500 a month for clothing, shoes and haircuts, and another $520 for travel, and a sum of $300 twice a week to bet on the races, that would already account for about $3115. The balance represents a sum of $55.76 per day, which on any view is a modest amount. On this basis, it would have been difficult for him to put aside money for medical emergencies, or for New Year or festival days.

42. The deceased was already 57 years old. No discernible pattern of saving can be shown. The evidence shows it would have been unlikely for the deceased to have accumulated much before he retired. On the evidence before me. I see no factors from which it may be inferred that there would be a possibility of some wealth being accumulated, consequently there is no basis for finding that any accumulation would have occurred as at the date of death by natural causes.

Funeral Expenses

43. A sum of $80,000 for funeral expenses had been advanced to the plaintiff by the defendant. A sum of $99,448 was claimed, but the evidence only supported a sum of $79,980. The defendant put the plaintiff to proof of the sum claimed. The plaintiff has failed to adduce any evidence in support of the balance. In these circumstances as the sum of $79,980 proved is covered by the sum advanced, no additional sum can be awarded.

Conclusion

44. The total sum I award to the plaintiff is made up as follows:

Under FAO

Under LARCO

Interest

45. The pre-trial loss of dependency will carry interest at half judgment rate from the date of the accident until the date of judgment. The statutory bereavement sum will carry interest at the prevailing interest rate for suitor's funds from the date of the service of the writ until the date of judgment. Thereafter, the awards will carry interest at judgment rate until payment.

Costs

46. Imake an order Nisi that the plaintiff shall have the costs of the assessment, against the defendant with Certificate for Counsel, to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations. The costs order is to be made absolute after the expiry of 14 days from the handing down of this judgment.