TAM LI KAM WAH AGNES v. WONG PUI HANG WILLIAM AND ANOTHER

HCPI 117/2017

[2024] HKCFI 3580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 117 OF 2017

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JUDGMENT ON ASSESSMENT OF DAMAGES

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1.  Tam Michael Arthur Shiu Cheung, deceased, (“Tam”) and Wong Ian Yik, deceased (“Wong”), both commercial pilots, lost their lives in a traffic accident when they were on board the vehicle driven by Wong. Tam’s mother (“the Mother”), in her personal capacity and as the administratrix of the estate of Tam, commenced the present action against the estate of Wong while the motor insurer of Wong also joined as a defendant. The Mother’s personal claim has since been settled. Liability of the Mother’s claim for the estate of Tam against the defendants has also been resolved by consent, leaving damages to be assessed. Hence this trial.

BACKGROUND

2.  The fatal accident happened on 12 March 2015. Tam was just over 28 years old then.

3.  On 6 February 2017, the Mother commenced the present action against the estate of Wong which subsequently became represented by its administrator, ie the 1^st defendant (“D1”). In her personal capacity, the Mother claimed as a secondary victim for nervous shock caused by the fatal accident. As the administratrix of the estate of Tam, the Mother brought her claim pursuant to the Fatal Accidents Ordinance Cap 22 (“FAO”) and the Law Amendment and Reform (Consolidation) Ordinance Cap 23 (“LARCO”).

4.  In July 2017, the insurer was given leave to join as the 2^nd defendant (“D2”) to defend the claim as if it were D1.

5.  On 27 October 2017, the Mother entered interlocutory judgment against D1 for damages to be assessed, but the same was subsequently set aside by consent in 2018.

6.  On 14 January 2022, the Mother and D2 (defending as if it were D1) resolved the issue of liability by the following order of the court (“the 14/1/2022 Judgment”):

(1)  Upon the Mother conceding and admitting 15% of liability on the part of Tam in contributory negligence in respect of the claim in this action under the FAO and the LARCO (other than the Mother’s own personal claim as secondary victim for loss and damages) (“the Claim”), interlocutory judgment for 85% of liability in respect of the Claim be entered in favour of the Mother against D1 for damages to be assessed and costs on liability in respect of the Claim;

(2)  For avoidance of doubt, the interlocutory judgment on liability in (1) above is without prejudice to the Mother’ s claim as secondary victim for loss and damages in this action on the issue of liability, causation and damages and any defence that may be raised by D1 and D2.

7.  On 4 November 2022, interlocutory judgment was also entered against D1 in respect of the Mother’s claim in her personal capacity. By consent, it was also ordered that D2 do on behalf of D1 pay the Mother (i) a sum of HK$400,000 (inclusive of interest) in full and final settlement of such judgment; and (ii) the Mother’s costs of the claim in her personal capacity in the present action, in satisfaction of the statutory liability of D2 as the motor insurer of D1 to Tam at the time of the accident.

8.  As such, the claim by the Mother in her personal capacity was settled, and the issue of liability to her claim for the estate of Tam was resolved. What remains is the assessment of the damages recoverable by the Mother as the administratrix of the estate of Tam subject to the apportionment of liability under the 7/1/2021 Judgment.

REVISIONS OF THE PLEADED CLAIM

9.  The formulation of the claim has undergone multiple revisions, including the revision allowed in January 2023, before leave was given to set down the case for assessment of damages.

10.  The pre-trial review was scheduled to take place some 8 months later. Yet it was only right before the hearing when counsel for the Mother presented to the court a whole list of intended revisions of the pleaded case on quantum labelled as “written update on quantum”. At the hearing, counsel indicated the possible need for even further adjustments than those then proposed. Concern and complaint in the circumstances were only to be expected. That was compounded by the fact that no draft revised pleading was tabled for consideration.

11.  That was not satisfactory. This court gave counsel 2 options: either the application to further revise the statement of damages was adjourned to a further pre-trial review to enable D2 and the court to have actual view of the draft revised pleading or alternatively the application would be granted on the basis of counsel’ written update and no more. This court made available to counsel the second option instead of insisting on the first option, which should really be the norm, mainly in view of the limited time before the then forthcoming trial. The lesser evil then would be to achieve certainty by at least expressly confining the ambit of the revisions to counsel’s written update. Of course, whether or not the further revised pleading actually adhered to such ambit would be subject to scrutiny by D2 and this court when the revised pleading was filed.

12.  After taking instruction, counsel reverted with confirmation to this court that the second option mentioned above was taken. Hence the order made at the end of the pre-trial review hearing. Revisions as set out in counsel’s note and no more, that was.

13.  Slightly more than a month before the trial, there came the application on behalf of the Mother for even further revision of the statement of damages, this time in the form of draft further revised pleading. This went contrary to the understanding and direction at the pre-trial review mentioned above. Those acting for the Mother confirmed in the affirmation in support that it was essentially the afterthought of counsel. By the latest revision, counsel sought to introduce a new alternative plea concerning the alleged loss of chance of career promotion and income increment.

14.  Fatal accident claim often calls for adjudication of whether the deceased would have achieved future promotion and income but for his premature death. What counsel sought to plead on behalf of the Mother was to introduce an alternative plea that there was a 95% chance of that so that the quantum should be allowed according to such percentage or any percentage as the court sees fit.

15.  The problems were multiple.

16.  First, the utility of the proposed new alternative plea of a 95% chance of career promotion was doubtful. In terms of proof on a balance of probabilities, the conclusion would have been almost certainty about the projected career promotion and income increase if the probability of that reaches 95%. In his submission, counsel for the Mother even argues that there ought to be award of 97-99% of the quantum arrived at. One wonders how the court would consider it necessary or reasonable to discount the quantum by the mere few percent as proposed.

17.  Second, in the event that the contention of a specific percentage chance is based on facts, the defendant and the court would be quite entitled to know such factual basis. The existing pleading and evidence certainly did not say or suggest such percentage instead of any other percentage.

18.  Third, the approach of this latest application also caused concern. Pursuant to the leave at the pre-trial review, the Mother was supposed to file the statement of damages further revised as per counsel’s written update mentioned above, which the court and D2 would have been entitled to scrutinize. However, this latest application came as one for leave to file the even further revised statement of damages as per draft, to which D2 was alerted only on the day before the deadline when the original further revised statement of damages was supposed to be filed. This put D2 in a difficult position as, if granted, such leave to the Mother would effectively render nugatory the original expectation of D2 and this court to scrutinize the actual revisions pursuant to the penultimate leave granted at the pre-trial review.

19.  Hearing the parties, this court at the end extended the time permitted by the leave given at the pre-trial review for the Mother to file and serve the further revised statement of damages in line with counsel’s previous written update, but gave further leave for the inclusion of the newly proposed further alternative plea for loss of chance of promotion to be assessed by discounting the accumulation of wealth from such promotion by such percentage as the court thinks appropriate. In other words, the specific 95% percentage contended was removed. The opportunity of D2 and the court taking any issue of the final version of the further revised statement of damages was also preserved.

20.  In the context of personal injury litigation, the court has time and again reminded the parties of the need to revisit the adequacy of the pleaded case particularly after much might have developed in terms of the formulation of the case and assembling of the evidence since the pleading stage. It should be ensured that the pleading provides adequate basis for the case so formulated to be advanced and the evidence so assembled to be adduced.

21.  Insofar as statement of damages is concerned, be it genuinely bringing up to date the quantum contended on account of mere passage of time or introduction of a substantive plea, proceeding with revision of the pleaded case in a piecemeal manner after setting down would be the least expected.

22.  How to approach these considerations depend on the circumstances and complexity of the case, and hence professional judgment. Pleadings dictate relevance and admissibility of evidence, and therefore are expected to be in order before the case is set down for trial. Whilst there should have been case management direction before then for the obtaining of counsel advice, whether or not counsel would actually be engaged is not the answer. In the present case, the piecemeal approach on behalf of the Mother persisted even in seeking to adduce evidence even after the close of the parties’ cases pending closing submissions. This will be discussed at the right juncture below.

23.  I shall now turn to the substance of the assessment.

UNDISPUTED PERSONAL BACKGROUND

24.  The education and employment as well as the family background of Tam are not disputed.

25.  Tam was born on 29 September 1986. After finishing secondary Form 2 in Hong Kong, Tam went to study abroad. After completing high school, Tam studied and graduated with his diploma in aviation in Canada in 2006. After return and a short stay in Hong Kong, Tam left again in 2007 to enroll with the aviation school in Canada, and became qualified as a flight instructor there in 2008. Half a year later, Tam returned to Hong Kong and became a flight simulator instructor.

26.  In 2009 and at the age of 23, Tam was accepted as a cadet pilot by CX and sent to training in Australia. In September 2010, Tam was employed by CX as a pilot in the rank of Second Officer (“SO”). With effect from 1 February 2014, Tam was promoted to the rank of Junior First Officer (“JFO”). He was then 28 years old. That was his rank when he passed away.

27.  The career path of a JFO, had it not ended, would have proceeded to First Officer (“FO”), Senior First Officer (“SFO”) and Captain. FO and SFO have by now been relabelled as First Officer 1 (“FO1”) and First Officer 2 (“FO2”) respectively. By the time of his death, Tam has passed the written test for promotion to the rank of FO, but the practical flight test known as Qualification Line Check (“Line Check”) was yet to be scheduled.

28.  Tam resided with his parents and younger sister at the family home in Homantin, Kowloon. At the time of the accident, his father (“the Father”) and the Mother were aged 62 and 60 respectively. The former used to be an engineer running his partnership business, and the latter an employed nurse. The Mother retired in July 2014, and the Father retired in 2019, with retirement benefits amounting to a total of nearly HK$3.7 million. In addition, both have decent savings. They own the spacious family home, which is mortgage-free, as well as a family yacht at the time. Tam’s sister was and still is a medical officer at a public hospital, and financially independent. Tam was single but had a steady girlfriend, a flight cabin attendant, at the time of the fatal accident.

THE PLEADED CLAIM

29.  Subject to the agreed contributory negligence mentioned above, the pleaded claim under the FAO and LARCO amounts to a total sum exceeding HK$20 million. On behalf of the Mother, the quantum was varied in the course of the trial and even after that.

Tam’s income

30.  At the material time, the monthly income of a CX pilot comprised various components on top of basic salary. These components will be further discussed below. The income of Tam, all inclusive, over the years until his death are pleaded as follows:

(1)  10/9/2010 – 31/3/2011 (as SO): HK$264,013 or average monthly HK$39,404.93;

(2)  1/4/2011 – 31/3/2012 (as SO): HK$704,802 or average monthly HK$58,733.50;

(3)  1/4/2012 – 31/3/2013 (as SO): HK$769,861 or average monthly HK$64,155.08;

(4)  1/4/2013 – 28/1/2014 (as SO) and 29/1/2014 – 31/3/2014 (as JFO): HK$766,786 or average monthly HK$63,898.83;

(5)  1/4/2014 – date of the accident (as JFO): HK$1,034,150 or average monthly HK$89,926.09.

31.  It is contended that Tam’s income would have been subject to increase, including that occasioned by his promotion. It is projected that he would have been promoted to FO by 2016, SFO by 2020 and Captain by March 2023.

The pleaded FAO claim

32.  At the time of the accident, the monthly family expenses were said to be HK$19,895.

33.  Tam allegedly made regular contribution of HK$10,000 in cash monthly, which was applied towards the family household expenses. Tam allegedly sometimes paid utility and miscellaneous expenses amounting to an average monthly amount of HK$1,930 as well as other non-regular contributions amounting to an average sum of HK$225. Then there were said to be other occasional expenses paid out of Tam’s pocket such as gifts for family members, pilot travel expenses and one-off payment for home and yacht repair. Altogether the non-regular contributions are said to have amounted to a monthly average sum of HK$2,500. Hence the pleaded total average monthly contribution by Tam of HK$12,500. The Mother contends that Tam would have contributed more to the family by an additional monthly sum of HK$5,000 after his expected promotion to FO.

34.  The parents claim as the dependents of Tam for the family expenses. The sister is said to have contributed a monthly sum of HK$5,000 towards the family expenses at the time of the accident. No dependency claim is advanced on her behalf.

35.  Damages for bereavement is claimed pursuant to section 4 of the FAO in the sum of HK$220,000.

36.  Inclusive of interest (on the pre-trial loss up to the date of trial), the Mother claims under the FAO a total sum of over HK$5.4 million.

The pleaded LARCO claim

37.  Tam was allegedly prudent in making investments in securities and foreign currency, which produced wealth and savings before his death. His wealth, cash and investments included, net of personal spending (with reference to credit card expenditure) is said to have accumulated to about HK$791,000 as of March 2013. That became about HK$1,020,000 as at the date of the accident.

38.  It is contended that but for his premature death, Tam would have continued to accumulate his wealth by way of savings and investments. In addition, there would have been accumulation in the form of pension benefits consisting of the employer’s contributions and his own voluntary contributions under CX’s provident fund scheme.

39.  In line with the above, the projected promotion to upper ranks all the way to that of Captain, it is contended, would have brought about further increase in Tam’s wealth accumulation. As mentioned, there is the latest additional plea of the claim for loss of accumulation of wealth to be assessed by the percentage chance of his promotion as the court thinks appropriate.

40.  On the basis that Tam’s own maintenance expenses since retirement would have amounted to 40%, the Mother contends that the net accumulation of wealth at the time of Tam’s natural death would have exceeded HK$14 million.

41.  Last, the Mother claims funeral expenses in the total sum of HK$146,650.

THE DISPUTE

42.  The quantum pleaded by D2 is substantially lower than that claimed. Subject to the agreed contributory negligence, D2 projects an award, inclusive of interest (on the pre-trial loss up to the date of trial), a total sum of slightly more than HK$2.9 million.

The FAO claim

43.  D2 disputes that the parents, considering their own wealth, were dependents of Tam at the time of his death. The Mother is put to proof of the alleged monthly financial contributions by Tam towards the family expenses. In any event, substantial part of any such contributions, allegedly about 60%, would have covered Tam’s own share of the family expenses. Likewise, Tam’s own share of the alleged non-routine expenses was no less than 25% of the family total. Specific items such as insurance premium for the family domestic helper and home insurance are said to be unsupported by any evidence.

44.  The projected promotion prospect of Tam, and hence increase in income and contribution to the family, but for his death is disputed. D2 does not accept that Tam’s performance was outstanding as alleged. The Line Check and promotion to FO is said to be by no means certain in his case. Nor is promotion certain in view of the local and global situations since 2019.

45.  Regarding future loss of dependency, D2 disputes the multipliers to be applied to the parents. Further, various factors would have had bearing on the dependency. For instance, Tam would have married as well as built and maintained his own family. Aviation industry had also been adversely affected since the outbreak of COVID-19, which would have impacted on the promotion prospect and the income of Tam.

46.  The claim for damages for bereavement is agreed.

The LARCO claim

47.  A major contention in respect of the pre-trial loss of accumulation of wealth is that CX has revised the basic salary of the flight deck employees of all the ranks downwards with effect from 2022. Further downward adjustment would have been made if the employee worked less than the minimum block hours. It is averred that such downward adjustment in the monthly income of Tam would have been likely because of the reduction in the number of passenger flights since the COVID-19 pandemic. As such, contrary to the Mother’s contention, any accumulation of wealth, D2 contends, would have at most remained at the same level as that before the accident.

48.  Again, the projected further promotion of Tam but for his premature death is denied. Further his likely marriage as well as building of his own family and raising of children would also have impacted on his financial ability to accumulate wealth, at least any chance of exceeding the pre-trial level.

49.  Regarding the alleged loss of pension benefit, D2 disputes the claim for loss of voluntary contributions of Tam to the CX provident fund scheme on the basis that his voluntary contributions have not been deducted from his income base for the assessment contended by the Mother, and hence no actual loss.

50.  D2 also disputes the applicable rate of investment return in the assessment of accumulation of wealth.

51.  Taking into account Tam’s personal spending occupying nearly 65% of his income as well as his own family commitment before and after the natural passing of his parents, D2 projects a net accumulation of wealth at the time of the natural death of Tam in the total sum of slightly more than HK$2 million. Discounting for accelerated receipt, it ends up in the sum of slightly less than HK$700,000.

52.  The claim for funeral expenses is agreed.

OVERVIEW OF THE WITNESSES

53.  The often cited principle regarding the court’s assessment of witnesses’ credibility and reliability is trite. Essentially, the witness’ evidence will be tested against the undisputed and indisputable evidence as well as contemporaneous documents. Its plausibility must be tested both inherently and internally as well as relatively against all the other evidence. See for instance, Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734/2009 (8 April 2014) (at §§76-82).

54.  The Mother gave evidence. She adopted her 3 witness statements to the extent that they relate to her claim under the FAO and LARCO (ie excluding that relating to her claim in her personal capacity which has been settled). Short of questioning her credibility as a witness, one should perhaps be cautious about the extent of her personal knowledge about Tam’s income and financial situation before his death as well as the reliability of her projection of his career development, income and financial situation but for his premature death. Much of her evidence in the latter of these aspects must come in second in terms of quality as compared to more reliable sources such as the documents and Tam’s ex-colleagues.

55.  The Mother called as witnesses 3 ex-colleagues of Tam at the time of the accident under the employ of CX. They are Captain Lee Lok (“Lee”), Captain Cheng Chor Hang (“Cheng”) and Captain Chan Bo Hei Phillip (“Chan”). Cheng and Chan are serving captains in the passenger flight service while Lee’s current position is Flight Operations Safety & Risk Manager. Of them, Cheng is the most senior, having joined CX as SO in 2001 and already a Captain in 2013. He has left CX for the UK in 2022, but returned to Hong Kong to testify. Lee became SO of CX in 2008. Chan and Tam came from the same cadet class, and became SO of CX at the same time in September 2010. Where appropriate, they will be collectively referred to as the CX witnesses.

56.  The CX witnesses testified to the circumstances relevant to the probable career development of Tam but for his premature death. All the CX witnesses gave evidence as to matters about Tam primarily from their own knowledge and observations from their actual encounter with him both socially and professionally. Their evaluation of Tam’s potential in career development was their personal perception and belief on the basis of such matters to which they were in a position to testify. Subject to the assessment of weight, such evidence does not fall foul of the rule governing opinion evidence in civil proceedings under section 58 of the Evidence Ordinance, Cap 8. The overview of the CX witnesses is that they all gave evidence in a responsible, clear and precise fashion. Their credibility and reliability is simply impressive.

57.  D2 called no witness.

PROSPECT OF TAM’S PROMOTION AND ITS PROBABLE TIMING

58.  By the time of death, Tam had been SO for 3.5 years and JFO for a year. He had taken the written test for promotion to FO. The Mother projects that he would have been promoted to the ranks of FO (now FO1), SFO (now FO2) and Captain by now. D2 questions its likelihood.

59.  Of the authorities cited, what Stuart Smith LJ in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 said (at 1614) is instructive about the spectrum of the assessment:

“…in my judgment, the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of damages, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket should be…”

60.  The background summarised at the beginning of this judgment demonstrates the passion of Tam in aviation and engineering well before becoming a commercial flight pilot. That continued to be the case after he had joined CX. Chan explained the recognised ability of Tam to excel and to lead during his training days both in Australia and Hong Kong. The evidence, including that of Cheng, explained Tam’s significant contribution as a core member of the team responsible for fabricating the very first amateur self-built airplane in Hong Kong, which Cheng eventually took for a record round-the-world flight in 2016.

61.  D2 puts the Mother to proof of the performance of Tam as a CX pilot. All the evidence considered, I see no difficulty in her discharge of such burden. Tam was already a flight simulator instructor before joining CX. His training days as a cadet mentioned above refer. The subsequent uneventful promotion from SO to JFO and the positive appraisal reports in respect of Tam disclosed by CX were testament to his competence in those ranks. Tam had been JFO for a year before his death. The documentary evidence from CX and the evidence of the CX witnesses regarding the competence of Tam in progressing to the rank of FO was both abundant and unreserved. That Tam would have managed passing his Line Check and promotion to the rank of FO was fairly expected by his colleagues. In my judgment, the prospect of that is beyond reasonable doubt.

62.  Next, the timing of promotion to FO.

63.  It must first be noted that the timing of expected promotion of Tam advocated by counsel for the Mother kept changing. The pleaded case just before the trial is that Tam would have been promoted to FO by 2016, SFO by 2020 and Captain by March 2023. When he opened his case, counsel submitted that it is beyond a balance of probabilities that Tam would have been promoted to FO by March 2016, SFO by April 2020 and Captain by April 2023. One can only assume that counsel consciously arrived at such change upon assessment of the evidence just before the trial.

64.  However, when it came to his closing submission, counsel projected yet another timetable for Tam’s expected promotion. Now he submits that Tam would have been promoted to FO with effect from 1 June 2015, SFO from 1 December 2019 and Captain from 1 March 2023.

65.  Inherent uncertainty somehow may explain. However, one must be conscious of the situation where the projected income level of a plaintiff, alive or deceased, was as high as that in the present case, such ever-changing case on the projected promotion timing could have significant bearing on the quantum, and hence putting the receiving end of such claim in difficulty. This is the least expected particularly when the change cannot entirely be attributable to new evidence revealed only during the trial.

66.  In any event, this court will assess on the basis of the circumstances as far as the evidence manages to suggest.

67.  Chan came from the same batch of cadets as Tam, and both were promoted to JFO within two months of the same year. According to Chan, all 10 members of the same batch also became FO except for Tam. All the CX witnesses managed to achieve promotion from JFO to FO in about a year. On the basis that Tam had so far proved himself to be at least as keen, competent and accomplished as his contemporaries, there is in my judgment sufficient basis for believing that he would have taken similar time for promotion to FO.

68.  Tam became the exception only because the timing of his Line Check was disrupted by the operational requirements of CX. According to Chan, Tam was pulled from his original scheduled Line Check flight. Not unreasonably, CX in its documents was not prepared to commit to the timing of Tam’s possible promotion as that would have depended on a range of factors and the completion of the Line Check which was yet to be rescheduled by the time of Tam’s death.

69.  The pleaded case of the Mother projects that Tam would have passed such Line Check and achieved promotion to FO in any event within 2015 (or by 2016). That by any standard would sound reasonable in his circumstances. As mentioned, counsel now suggests that Tam’s Line Check would have been re-scheduled and passed within 3 months of his death, ie by June 2015. He goes so far as submitting that this is the irresistible conclusion. Considering the state of the evidence in this respect, I do not see how so as a matter of fact. Whilst the Line Check for such promotion had been offered to Tam within the normal time as the CX witnesses explained (ie about a year after being JFO), that the same would have been re-scheduled for Tam in just 3 months but for his death is not actually supported by evidence. I do not find it fair to accept such projection better than the pleaded case. I find that Tam would have been able to achieve his promotion to FO by 2016 as pleaded.

70.  Next the prospect of further promotions and their timing.

71.  The circumstantial evidence in support of the projected further promotion from FO to SFO in Tam’s case mainly came from the CX witnesses. Lee described CX as a career airline with a structural development programme for pilots so much so that a FO was expected to progress to SFO according to seniority. Upon accumulating the requisite recent flying hours, FO would be assessed and promoted to the senior rank. In a sense, the progress was viewed as somewhat automatic.

72.  There is no reason for doubting Tam’s eligibility in terms of seniority within CX to achieve progress to the rank of SFO but for this death. Whilst his performance in the assessment course and accumulation of flying hours since his death are matters of speculation, there is evidence qualifying as objective reference. Cheng recited his experience of taking about a year from FO to become SFO. Chan referred to the fact that all 10 members of his cadet class, except for Tam for the reason explained above, who had served CX for 10 years managed promotion to SFO by 2020, of them most had obtained the Relief Command Qualification (“RQ”). RQ allows the SFO to take over the Captain’s steer on board, relieving the latter for in-flight rest. Lee and Chan took about 4 years for their promotion from FO to SFO. Lee reckoned that majority of FO passed the requisite Line Check in the first attempt. On the basis of their knowledge and experience as well as their perception of the competence of Tam, they expressed confidence that Tam would have achieved what they had managed by then but for his premature death.

73.  In my judgment, the evidence is abundant in support of Tam managing to achieve further promotion from FO to SFO, but for his premature death, by 2020 as pleaded. The likelihood of that, in my judgment, is no less than that of his previous promotion projected. Nor is that any less than what his ex-colleagues in fact managed to achieve in such progression.

74.  In other words, I find that Tam would have progressed to SFO by the end of 2019.

75.  The assessment of the projection of further promotion from SFO to Captain in Tam’s case is relatively less straightforward. While the CX witnesses continued to hold their observation about, and their confidence in, Tam in reaching the Captain rank, extraneous circumstances enter into consideration as the projected timing of such further promotion would have straddled across the admittedly turbulent times faced by CX, if not the aviation industry in Hong Kong, due to the local and global situation between 2020 and 2023. Amongst others, the obvious blow was the COVID-19 pandemic. The pandemic had negative impact on the business environment of CX, which in turn affected the employment terms of the flight crew. It may not be surprising if their promotion since 2020 was also affected.

76.  From the annual results announced by CX, one understands that the onset of the pandemic in 2020 had led to substantial reduction in passenger flights and revenue. Group restructure plan entailed the discontinuation of another operation arm, CX Dragon, resulting in redundancy of its job positions. In late 2020, all the CX Hong Kong-based pilots were requested to sign over to new contract terms, which had the effect of reducing the basic salaries and subjecting a major part of the monthly income to the amount of flying undertaken. Notwithstanding that, over 98% of these pilots accepted the transition.

77.  Impacted by the mandatory quarantine requirement imposed on entrants to Hong Kong from abroad, CX introduced voluntary closed-loop duty cycles for its Hong Kong-based pilots in 2021. Flight schedules and passenger capacity were less than those as planned, and less than those in 2020. The situation was worsened by the banning of flights from some countries and high risk transits altogether as well as tightened quarantine requirement for Hong Kong-based pilots at one point. According to Chan, fleet capacity was maintained at 15-20%. Because cargo flights at the same time were on the rise, some pilots, according to the CX witnesses, would change to undertake cargo flights so as to maintain their pre-pandemic income level. Factors such as the difference in frequency of flights undertaken by the Boeing Fleet and the AirBus Fleet, sufficiency of Training Captains and number of command courses were explored during cross-examination. Counsel for D2 also set out the circumstances relevant to the consideration.

78.  However, the CX annual results reported gradual improvement in the subsequent years. Following the progressive adjustments to the restrictions since May 2022 as well as the lifting of the quarantine requirements for passengers entering Hong Kong and Hong Kong-based aircrew in September 2022, CX saw recovery of passenger revenue which doubled the record low since the pandemic.

79.  The pandemic ended after the first quarter of 2023. CX reported that passenger flights have resumed to 50% of the pre-pandemic capacity covering 70 destinations by the first quarter. Passenger revenue rose by over 1,000% compared with the low during the same period in 2022. The target of resuming 70% pre-pandemic passenger flight capacity levels covering 80 destinations by the end of 2023 and 100% capacity by the end of 2024 was considered to be on track. In mid-2023, CX also announced recruitment plan.

80.  Cheng in his evidence also testified to his understanding that post-pandemic expansion of CX’s business was expected to lead to increase in demand for Captains, and the time taken for reaching the rank of Captain also managed to catch up. According to Lee, by the pandemic, the command course for promotion to Captain was last offered for those pilots of the 2007 vintage. There was almost no command course for promotion to Captain during the pandemic until 2022. However, Chan witnessed a lot of such courses offered to catch up by the end of 2022. The most recent course, according to Lee, was offered for the pilots of 2012-2013 vintage, which was a few years junior than Tam. In other words, command course for promotion of pilots of relatively senior vintage like Tam would have already been offered before late 2023.

81.  This is also the juncture for addressing the attempt of those acting for the Mother to adduce new evidence after the parties have closed their respective cases at the trial pending closing submissions. By letters one after the other to the court in late January 2024, those acting for the Mother referred to counsel’s advice to adduce new evidence consisting of copies of the latest news articles on information disclosed by CX on the measures implemented to replenish the pilot pool with a view to recapturing its pre-pandemic service capacity. The measures were reported to include adjustment to the qualifying flying hours for taking the command course for promotion to Captain and the remuneration package. There was also the news article about another major international airline recruiting pilots. Such recent development is said to be favourable to the prospect of promotion of Tam under consideration.

82.  What needs to be addressed is not so much about whether the parties are in principle entitled to disclose relevant documentary evidence at any stage of the proceedings. As indicated by this court in the written directions dated 25 January 2024 in response to the attempt to adduce the first round of such new evidence, there was to the knowledge of the court fairly wide news coverage of this topic at the time. What caused this court concern was the second round of such new evidence which consisted of a purported letter from Chan stating the recent remuneration adjustment with effect from January 2024. The basis for the attempt was that it served to “bridge the information gap”. Apparently, no thought has been cast on applying to recall the witness for such purpose. Instead, the attempt was to adduce his out-of-court statement not even verified as a witness statement. Counsel in his then written submission in support nevertheless argued that it should be admitted as being relevant. However, subsequent to this court’s written direction dated 2 February 2024, those acting for the Mother conceded and dropped the attempt to adduce that second round of new evidence.

83.  Counsel for D2 took no strong view against the admissibility of the first round of new documentary evidence mentioned above. However, she observes that such new evidence could not and does not change the evidence before the court during the trial. I somehow agree. Insofar as the new evidence is said to corroborate the prospect of Tam’s promotion notwithstanding the intervening difficulties of the business environment of CX brought about by the pandemic, it amounts to no material addition to or subtraction from the analysis of the evidence in this respect discussed above. It does appear that the recovery trend of CX’s business suffices in founding the projection of the probable further promotion of Tam from SFO to Captain. That the pandemic did not cut back the eligibility in terms of seniority and the qualifying flight hours for the command course in the case of Lee and Chan provide reliable reference. Nor did the impact of the pandemic stall their promotion to Captain in March 2023. What the CX witnesses testified about the actual experience of the pilots was empirical evidence.

84.  In view of the background and recognized qualities of Tam, it is in my judgment most unlikely that he would have given up his aviation career and joined the pilot drain in the hard times of CX during the pandemic. Nor is it likely that he would have somehow allowed himself to be bypassed in terms of opportunity for promotion which was open to his ex-colleagues of similar seniority and priority.

85.  According to Lee, the passing rate of the 4-phase command course for promotion to Captain was 80-90%, and the CX witnesses reckoned that most managed to pass in the first attempt. Between Lee and Chan, the latter, as mentioned, was the contemporary of Tam and had taken 3.5 years to be promoted from SFO to Captain, and 12 out of the 24 from the same batch as Tam whom had been offered the position of SO had been promoted to the Captain rank by 2023. On the basis that Tam was at least as competent as Chan and would have achieved promotion to SFO by 2020, there is indeed good reason for believing that Tam could have progressed to the rank of Captain as Chan did. If anything, the evidence, in my judgment, tends to suggest that Tam, whenever given the opportunities, would have excelled if compared to others. The known circumstances do not reasonably call for other contrary assumption against this projection. In my judgment, the promotion could have happened by say mid-2023. Cross-checked from another perspective, the course which Tam would have had to take from the rank of SO to that of Captain would have basically aligned with that taken by the CX witnesses which was about 12 to 14 years.

86.  It follows from the above that there is in my judgment no real call for the application of the percentage chance approach to the assessment in respect of the promotion to the rank of Captain advocated as an alternative. The circumstances of the present case, particularly the background, recognized qualities and credentials of Tam as well as the known appraisals by his employer before his death, materially differ from the relevant circumstances surrounding the respective plaintiffs in the instances of Lam Pui Yi Anita v Secretary for Justice & Anor [2011] 1 HKLRD 56; Marlene Susanne Courbet v Mandarin Divers Marine Services Ltd & Ors HCPI 677/2000 (16 October 2001) cited by counsel for the Mother.

87.  Whilst not being its pleaded case, D2 in response of the newly introduced alternative of the percentage chance approach does invite this court to consider adopting such approach. Counsel cites the application of the percentage chance approach in assessing the quantum by the court in Cheung Mun Yi v Tam Siu Wong & Anor HCPI 809/2006 (10 July 2008). That was a case where the plaintiff was one of two candidates at the time of the accident for elevation to the vacant chief position. Whilst the court rehearsed all the evidence in this respect quite favourable to the plaintiff, he was satisfied with her chance of that to the extent of 70%.

88.  Comparison with decided cases for the justifiability of the approach may have a point, but that for drawing the appropriate conclusion in quantitative terms has its inherent limitation. In each of these cases applying the percentage chance approach, precisely how such chance was so quantified was not really a quantitation exercise. For that matter the instructive explanation by the court in Allied Maples Group Ltd (above) mentioned above says it all. That aside, it is in any event for the court hearing the case to assess its circumstances. In my judgment, adoption of the percentage chance approach is not necessarily or exactly a quantification exercise, but the intuitive manifestation of the court’s acknowledgement of the probability which is short of certainty. Hence pronouncement of a percentage of a full award, which the court hesitated to make, in line with the extent of such acknowledgement. Here in the present case, I am satisfied about Tam’s prospect of promotion along the CX pilot rank ladder with the necessary degree of certainty.

FAO CLAIM

Loss of dependency

89.  Section 3 of the FAO provides that:

“If death is caused to any person (the deceased) by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the deceased to maintain an action and recover damages in respect thereof, then subject to section 4(2) an action for damages may be brought for the benefit of the dependants of the deceased against the person who would have been liable in damages to the deceased in respect of that wrongful act, neglect or default.”

90.  The primary stance of D2 is denial that the parents of Tam were dependents of Tam at the time of his death. Essentially the contention is that the parents were sufficiently well off. They were also retired with substantial pensions and savings prior to the passing of Tam. They own their mortgage-free residence and family yacht.

91.  The parents perhaps did not have to depend on Tam financially. However, that is not determinative of whether they are entitled to claim for loss of dependency. Dependency in this context is not a question of need or reasonableness but one of fact. Dependency existed if there in fact was and would have been sufficiently recognizable contribution by the deceased to the parents personally or generally to the family household, whether or not the deceased also lived in the same household. But if he did live in the same household, account must be had to his share of the family household expenses effectively funded by his own contribution.

Principles of assessment

92.  The court in Tsang Mei Ying & Another v Lam Pak Chiu & Another [1999] 2 HKLRD 807 explained (at 810I – 811E):

“The starting point is to calculate the value of the dependency as at the date of death, usually as a percentage of the income of the deceased. It is then revised in the light of the income which he would have received at the date of trial had he survived. The best means of calculating the dependency is to set out item by item where possible, the value annually (or monthly) of the payments made for the benefit of the family as a whole subject to any deduction to represent the benefit to the deceased. It is a check on the reasonableness of such figures to compare the total with the net annual or monthly income of the deceased at the date of his death. The calculations are easier to make where the evidence clearly shows the deceased making a regular payment to his wife for running the family and the home, and also paying for certain fixed items e.g. rent. The reasonableness and the accuracy of such calculations often depend upon hard evidence, in the form of records, and oral evidence e.g. from the widow. Sometimes the picture can be more complex such as where the wife earns and contributes to the household, unless there is clear evidence which allows that to be treated in isolation so as to determine real dependency. Many items of dependency are common to the family whether there are children or not, and, if there are, when they leave home and the picture of dependency in other respects, changes. The common items remain part of the dependency picture. Examples of these are, rent, utilities (though these may vary according to exceptional use) and other fixed payments. Moreover as some dependents cease to be such, the dependency of those remaining in the household often increases. The modern practice is to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. These percentages tend to be used ‘unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts’ (per O’Connor L.J. in Harris v. Empress Motors [1984] 1 WLR 212 (at p. 216-217).”

93.  In the present case, the average family monthly expenses, consisting of various heads, are said to be about HK$19,895. Considering the evidence, I accept that as fact within reasonable approximation. Due to the evidence that the item of management expenses was settled by the father, counsel suggest that the monthly family expenses should be reduced to HK$17,895. I do not see how so. That a particular item of regular expenses might have normally been assumed or settled by a particular member of the family out of his own pocket does not therefore deprive such expenses of its family nature or the effective dependency of that member on the contribution by the deceased during his lifetime towards the family pool.

94.  The household consisted of 4 members, and therefore each equal share would be HK$19,895/4 = HK$4,973.75. Tam’s sister, as a hospital medical officer at her age, is financially independent. She does not claim to be a dependent of Tam, and in fact contributed about HK$5,000 a month, which more or less served to cover her share of the family expenses.

95.  Tam’s alleged average regular monthly cash contribution was about HK$10,000 and average routine and non-routine monthly contribution was about HK$2,500. That the case in respect of the former was slightly inconsistent if one considers the pleaded case, the witness statement and the answer to the interrogatories of the Mother, reinforces the approximation but does not materially compromise its credibility. According to the Mother, the irregular contribution went to household expenses, travelling and occasional celebration spending.

96.  In his submission, counsel for the Mother seeks to deviate from the above pleaded case. According to him, all items of contributions from Tam should add up to a total sum of HK$15,154.93. Further, it is said that since Tam’s job entailed his being out of home for half of his time in a month, his share of the family expenses should accordingly be reduced by half. By deducting this so-called real share of Tam, counsel arrived at the sum of HK$12,904.93 being the balance of his monthly contribution which went to support his parents. It is on this basis that counsel categorises the amount as “close to the pleaded figure of HK12,500” whilst the sum, as mentioned, was clearly pleaded to represent the average total contribution for the benefit of the family, not merely the parents.

97.  I am sceptical about such approach of counsel in deviating from the pleaded case with a view to jacking up the claim, particularly when it is not correct to attribute that to evidence never before contemplated but only newly arisen in the course of the trial. Reiteration of the importance of pleading and its implication discussed above refers. All things considered, I am prepared to accept the alleged average monthly contributions made by Tam to be a total sum of about HK$12,500 as a matter of fact. This is not disputed by D2 anymore in submission.

98.  The average total monthly contribution of HK$12,500 served to cover Tam’s own share, ie a quarter, of the family expenses. However, on behalf of D2, it is argued that Tam’s share should also include a notional value of accommodation at his parent’s property which Tam enjoyed for free. Reliance is placed on Fung Suen Sim v Liu Chun Pong & Anor HCPI 896/2007 (23 December 2011) at §35.

99.  As counsel acknowledges, what was said in Fung Suen Sim concerned the loss of dependency of children of a deceased parent, who allowed them to reside at the parent’s property without them inheriting it. The dependent children were found to be entitled to include as part of their dependency the value of such free accommodation provided by the deceased. The logic of that is readily understandable, whether or not the property is rented or self-owned by the deceased parent with or without mortgage liability. However, I hesitate to agree with counsel that the same therefore applies in the circumstances of the present case as if this is what counsel describes as merely the reverse side of the same coin, particularly when the property owned by Tam’s parents was always the family home provided by the parents to all, including the bringing up of their children, and importantly was mortgage-free. Further, it is not that Tam did not contribute towards the accommodation, as according to the evidence, his non-routine contribution indeed went to cover his share of the expenses on the upkeep and maintenance of the property.

100.  In response to the above argument advanced on behalf of D2, counsel for the Mother also dives into extensive analysis of the rules of damages under the statutory regime, including their legislative history, intent and interpretation. I do not propose to join him in the exercise, in view of the above discussion. However, it should perhaps be made clear that there is nothing peculiar about a situation where the dependent claimants and the deceased were in fact mutual dependents on the discharge of financial burden of the family household of which they were members. That all of these family members residing under the same household were working and respectively footing the bills for different items of the family expenses could only be a common phenomenon in Hong Kong. That is a situation enabled by the pooling of family resources, though each member may have assumed the responsibility of settling some items of the expenses from his or her own pocket on a daily basis. Such situation is expected to be duly taken into account in calculating the actual extent of dependency of the claimant dependents on the deceased family member.

101.  Net of his own share of the family expenses in the sum of HK$4,973.75 as mentioned, the balance of HK$(12,500 – 4,973.75) = say HK$7,526 was his net support to his parents. Hence HK$3,763 each.

102.  The Mother projects that Tam’s contribution towards the family, and hence the dependency of the parents, would have increased in line with his promotion. She says his first promotion to FO would have led to an increment of HK$5,000 per month. Counsel says D2 has no evidence to contradict the contended increment. However, one should perhaps consider too what evidence there is in support of the amount contended instead of any other amount.

103.  In any event, the pleaded case of the Mother is factoring in such increase only for the purpose of assessing the future loss, despite her projected promotion of Tam to the rank of FO well by now. In his submission, counsel for the Mother seeks to advance her case on the basis that the alleged HK$5,000 increment in monthly contribution by Tam would have come about upon his promotion to FO, which therefore again deviates from the pleaded case.

104.  To justify the alleged HK$5,000 increment in monthly contribution by Tam, counsel refers to the earliest days of Tam’s work life before his CX days, and points to Tam’s readiness to give more to the Mother when earning more. However, one should not lose sight of the fact that the amount given to the Mother in those days in absolute terms were invariably small by any standard. It will be a leap to draw a pattern out of such occasions. This differs from the time of Tam’s death when his monthly contribution was by any standard a decent amount.

105.  The Mother’s evidence in this respect in court impresses that this projected increase in regular contribution is no more than her own conjecture in the absence of concrete basis for expectation. She confirmed that it was not mentioned or brought about by indication of intention by Tam during his lifetime. Counsel for the Mother in saying that his client’s such contention was not challenged in cross examination, and hence acceptable as the fact, fails as a matter of overall assessment of the evidence.

106.  Whether or not the level of contribution of Tam towards the family would have increased in line with his projected promotion and income increase must also be tested by the probable development of his personal circumstances. The assumption on the part of the Mother that Tam would have remained residing at the family home, in my judgment, must come second to the likelihood of his moving out and starting his own family at one stage and most probably by now. Tam was 28 years old at the time of his death. He had a steady girlfriend by the time of his death and, according to the Mother, conceived marriage probability. In another 4 to 5 years, and at the age of 32 to 33, Tam would have been a FO as found above. Considering his circumstances, including his pre-accident lifestyle, career stability and stage of life, chances are that he would have moved out and started his own family around then. I so find.

107.  The above circumstances would have typically impacted on the allocation of a deceased’s financial resources in Hong Kong. If anything, the circumstances would probably have further put Tam on guard about increasing the regular contribution towards the support of his parents during the insecure times during the COVID-19 pandemic, especially when the priority would be to support his own family while his parents do not impress me to be the type possessing contrary expectation. Therefore, while Tam might have continued his regular contribution, the likelihood is that such contribution would have been maintained at similar level.

Loss of dependency up to date

108.  It was a period of 117 months since the date of the accident until now. The parents of Tam would be entitled to claim loss of dependency by now in the sum of HK$7,526 x 117 months = HK$880,542 to be apportioned between the two equally.

Future loss of dependency

109.  For the purpose of assessing the future loss of dependency, there is dispute as to the applicable multipliers for Tam’s parents, which hinge upon their disputed life expectancy.

110.  Counsel for D2 first relies on the life expectancy in 2022 published by the Centre for Health Protection. In view of the rider in the publication that such data should be interpreted with care because of the exceptionally high mortality rates in that year affected by the COVID-19 pandemic, counsel turns to the Hong Kong Life Tables 2016-2046 published by the Census and Statistics Department in August 2023, which counsel for the Mother relies on. Whilst referring to the same data source now, counsel rely on the different representations of the findings made under the same section.

111.  Counsel for D2 relies on the written results, which says that the expectation of life at birth for males increased to 83.2 years and that for females increased to 87.9 in 2021. It is projected that they would increase by further 3.2 years and 3.9 years respectively in 25 years, ie 2046. On a pro-rata basis, that would mean annual increase of 0.128 year and 0.156 year for males and females respectively during the 25 years since 2021. The life expectancy for males and females by the date of the trial, counsel says, would be 83.5 years and 88.1 years respectively.

112.  Counsel for the Mother refers to the actual life tables for 2020. For the Father and the Mother aged 71 and 69 (and 4 months) respectively at the date of the trial, the life expectancy for them would be 17.44 and 21.31 respectively or in other words ages of 88.44 and 90.31 respectively.

113.  Between the two, I prefer the projection on behalf of the Mother.

114.  First, whilst counsel for D2 shifts from reliance on the data published by the Centre for Health Protection to the Life Tables for the concern about the impact of the COVID-19 pandemic on the mortality rate in 2022, she nevertheless choose to rely on the written analysis in respect of the situation as of 2021. However, the pandemic started in 2020, and its impact is expected to have surfaced in 2021. That would seem to be the case, if one reads what follows what counsel relies on. It says the differential in expectation of life at birth between males and females also fluctuated somewhat in 2020 to 2022 during the epidemic. If available, it would appear that the data in respect of the situation in 2020 would be a relatively more neutral starting point.

115.  Second, in assessing the life expectancy, not only the age but also the health of the dependents claiming future loss of dependency in the case before the court is relevant: see Kan Wai Ling and Fan Mei Na, the co-administratrices of the estate of Kan Siu Hong, Deceased v Kan Chi Fai [2018] 4 HKC 324 at §117. In the present case, whilst there was no actual exploration of the state of health of the parents of Tam in the evidence, save that the Mother testified and therefore could be observed by the court, their personal background, previous occupation, their retirement condition and the family circumstances give the impression that they led a fairly comfortable life at least prior to the trauma resulted from the sudden loss of their son. Chances, I find, are that they should manage to fall within the top range of the life expectancy mentioned above, which also does not appear to be unreasonable by local standard nowadays.

116.  All things considered, I am convinced that the higher but not unreasonable multipliers proposed on behalf of the Mother may be adopted. Hence the Father and the Mother are expected to live until 88.44 years old and 90.31 years old respectively.

117.  At his present age of 71.92, his life expectancy will be 16.52. At her present age of 70.42, her life expectancy will be 19.89. Table 28 of the Personal Injury Tables Hong Kong 2019 (“Chan Tables”) advises that for the Mother with her life expectancy of 18.89 years, a multiplier at 2.5% would be between of 14.53 and 15.17, and hence 15.1. For the Father with a life expectancy of 16.52, a multiplier between 13.22 and 13.88 at 2.5% would be appropriate, and hence 13.56 in his case.

118.  I accept D2’s contended increase in Tam’s future contribution towards the parents’ family in line with cumulative inflation rate, which counsel for D2 proposes to be 15.8%. As such, the father’s future loss of dependency will be HK$3,763 x 115.8% x 12 x 13.56 = say HK$709,061 and the Mother’s future loss of dependency will be HK$3,763 x 115.8% x 12 x 15.1 = say HK$789,589.

Bereavement

119.  Section 6 of the FAO provides that:

“In the action, such damages, other than damages for bereavement, may be awarded to dependants in such proportions as reflect their respective injuries as a result of the death.”

120.  The sum of HK$220,000 claimed is agreed.

LARCO CLAIM

Loss of accumulation of wealth

121.  Section 20(2)(b) of LARCO provides that:

“Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—

…

(b) shall, where the death of that person has been caused by the act or omission which gives rise to the cause of action—

…

(iii) not include any damages for loss of property, whether income or otherwise, in respect of any period after his death, except in so far as the court is satisfied that, but for the act or omission that gave rise to the cause of action, the deceased would have achieved an accumulation of wealth by the time that he would otherwise have died, in which case damages may be awarded in respect of the loss of that wealth:

Provided that damages awarded under this sub-paragraph shall be subject to such deduction as the court considers it just to make in the circumstances of any particular case on account of the accelerated receipt of that wealth and in order to avoid over-compensation.”

Principles of assessment

122.  The Court of Final Appeal in Lam Pak Chiu & Another v Tsang Mei Ying & Another (2001) 4 HKCFAR 34 explained (at 39H – J and 48A – F) that:

“Where a person is killed by an act or omission giving rise to a cause of action which survives for the benefit of his estate, the damages recoverable for the benefit of his estate may include an award in respect of loss of accumulation of wealth. Such an award is recoverable if and in so far as the court is satisfied that, but for such fatal act or omission, he would have left an accumulation of wealth by the time when he would otherwise have died. Section 20(2)(b)(iii) of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, so provides.

…

Thus if the court were to find in any given case that an accumulation of wealth would have been achieved by the notional time of retirement, the realistic possibilities, factoring in probable inflation, would then be as follows:

(i) expenditure during retirement may exceed the income from the accumulation plus any pension and the like received during retirement so as to exhaust the accumulation some time before the notional time of death, thus leaving the deceased dependent upon state, family or other help during his notional final years; or

(ii) post-retirement expenditure may exceed post-retirement receipts but only so as to diminish the accumulation without exhausting it; or

(iii) such receipts may more or less match such expenditure so as to leave the deceased's financial position at the notional time of death much the same as it had been at the notional time of retirement; or

(iv) it may even be that such receipts would exceed such expenditure so as to leave his financial position better at the notional time of death than it had been at the notional time of retirement.

It would be for the court to select from these possibilities the one which it considers the most realistic in the particular circumstances of the case, remembering that the burden lies on the party who asserts.”

123.  In Kan Wai Ling (above), the court explained:

“129. As I stated in Fung Suen Sim v. Liu Chun Pong, it is inappropriate to use a multiplier to assess his notional savings over this period of time. The award under this head of claim is not a lump sum award to represent the loss of a future continuing stream of income, which has to be discounted, on account of accelerated receipt, by the use of a multiplier. The above assessment has to be made in order to assess the total notional accumulation of wealth from the time of death to the time of notional retirement, including any likely growth of these accumulated savings from investment returns. Once this amount has been assessed, the next stage is to determine whether this accumulated wealth would grow, or be depleted, by the time of natural death. If there is a net balance at the time of natural death, this net balance, which is a future loss sustained by the estate of the deceased, must be discounted for accelerated receipt. However, this discount is a discount for the accelerated receipt of a future lump sum loss rather than for the loss of a future continuing stream of income.

130. In Fung Suen Sim v. Liu Chun Pong I had stated:

‘The current practice is to assess multipliers, and discounts for accelerated receipt, on the assumption that prudent investments made of the damages awarded to victims of torts would yield an annual return of 4.5% per annum (see Cookson v. Knowles [1979] AC 556 and Chan Pui Ki (an infant) v. Leung On [1995] 3 HKC 732). Where a court finds that the deceased would, but for the accident, have accumulated wealth from the date of his death to the date of his natural retirement and that he would have invested the wealth he accumulated, then, in order to be consistent with the current practice, it is only right that the court should assume that such investments would yield a similar rate of return of 4.5%. Although I have not attempted to make detailed calculations in this regard, I am probably not much off the mark in assessing the assumed return on savings to have augmented the accumulated fund to about HK$1,300,000.’

…

131. The discount rate was reduced to 2.5% for future losses in excess of 10 years by my decision in Chan Pak Ting v. Chan Chi Kuen (No. 2) [2013] 2 HKLRD 1. In Bibi Bushra and Nabela Qoser, the co-administrators of the estate of Khalid Mehmood, deceased v. Method Building and Engineering Works Ltd (in liquidation) & Ors. [2014] 3 HKLRD 21, I observed that:

‘In Fung Suen Sim, the personal representative and administratrix of the estate of Lung Kai Hon, deceased v. Liu Chun Pong & Anor., HCPI 896/2007, 23 December 2011, I held that the claim for loss of accumulation of wealth, a remnant of the abolished lost years’ claim, was unlikely to yield a very high award, even in cases where the deceased was likely to accumulate substantial savings on account of the fact that he was a high income earner and lived frugally. In that case, I assessed the award for loss of accumulation of wealth based on a rate of return, net of inflation, of 4.5% per annum. If the net rate of return of 2.5% per annum, assessed in Chan Pak Ting v. Chan Chi Kuen & Anor. [2013] 2 HKLRD 1, is taken to make the assessment, the award may be even lower.’ ”

124.  The above was applied for instance in Chung Sui Cheong v Tsang Wai Hung HCPI 1058/2015 (3 November 2017), and recently in Chiu Sui Ching, the administrator of the estate of Leung Ho Tin, deceased v Cheng Kwai Hung trading as Hang Ngai Works & Ors HCPI 939/2017 (11 November 2022) and Yeung Pak Kwan v Chen Decang HCPI 994/2012 (7 December 2022).

125.  The parties are ad idem that any accumulation of wealth achieved by Tam should first be net of his expenses from his retirement to his natural death and then be discounted for accelerated receipt. However, there is dispute as to the understanding of the principles regarding how the discount should be factored in.

126.  Essentially, D2 contends that after ascertaining the net accumulation of wealth by the multiplier approach, a further discount should be applied for accelerated receipt. The Mother disagrees, and contends that what D2 advocates applies only if the total and net accumulation of wealth is ascertained other than by the multiplier approach. Otherwise, there will be double discount as the discount factor would have been taken into account in ascertaining the applicable multiplier in adopting the multiplier approach.

127.  I agree with counsel for the Mother. I would proceed to ascertain the total and net accumulation of wealth other than the multiplier approach, and at the end to discount the same for accelerated receipt. This was for instance the approach applied in Chung Sui Cheong (above) and Yeung Pak Kwan (above; though no discount was applied in the circumstances of that case).

Pre-accident state of affairs

128.  There is no dispute that Tam had accumulated wealth prior to his death. That manifested itself in the form of credit balance in the integrated account, which by nature was the comprehensive account of Tam’s state of wealth as a result of both interest bearing savings and investments in equities by the time of his death.

129.  The Mother contends that the credit balance of the integrated account as of the date of Tam’s death should be taken as the wealth accumulated by Tam since his commencement of employment by CX in 2010. Query is raised as to the missing picture of Tam’s state of wealth before 2013. The fact is the integrated bank account statements of Tam disclosed by the bank were dated back to March 2013 as those prior to that exceeded the ambit required to be kept by the bank pursuant to its statutory obligation at the time those acting for the Mother requested for the documents.

130.  In other words, there is no bank record relating to the years since Tam’s commencement of working life in 2008 and subsequently joining CX in 2010. That said, there is evidence that Tam’s first job was working at a garage in 2006 earning negligible amount. He returned to Canada to study in the following year. He then had a job as an instructor there in 2008. After returning to Hong Kong in the same year, he started to work as a flight simulator instructor earning at an hourly rate of HK$150, and the relevant mandatory provident fund statement suggests a monthly income of about HK$15,000 then. According to the Mother, at each stage, Tam gave her part of his income. When he became a CX cadet, he received a modest daily subsidy of AUD15, and according to the Mother, he effectively relied on his savings for his expenses.

131.  Considering the evidence, and the extent to which it was successfully challenged at the trial, I tend to believe that whilst he might not be penniless before he joined CX as a pilot in September 2010, it is more probable than not that he had not had much capacity to save in a material sense by then.

132.  Counsel for D2 proposes an alternative method of ascertaining Tam’s savings pattern on the basis of the documents in hands. She takes the credit balances of Tam’s integrated bank account statements as of April 2013 and March 2015 respectively, and arrives at the net wealth increase during those 2 years. She says this would be analogous to the approach discussed in Yeung Pak Kwan (above) at §83 (applying Chan King Wan and Yip Siu Yin & Anor v Honest Scaffold General Contractor Co Ltd & Anor CACV 290/2000 (20 February 2001)). However, what the court in Yeung Pak Kwan did was to apply the principle that the whole period instead of mere part of it taken by the deceased to achieve the accumulation by the time of the deceased’s death should be applied in the assessment.

133.  All things considered, I find that it is fair to assess on the basis that Tam managed to achieve the accumulation of wealth as shown by the credit balance in his integrated bank account at the time of his death since his becoming a SO of CX in September 2010. That was a total period of 54 months. The average monthly accumulation was HK$1,019,242.31/54 months = say HK$18,875. Relative to his average monthly income over the same period which, as pleaded, was HK$(264,013 + 704,802 + 769,861 + 766,786 + 1,034,150)/54 = say HK$65,548, the accumulation would effectively be HK$(18,875/65,548) x 100% = 28.8% of his average monthly income.

Income of Tam but for his death

134.  The income of Tam but for his premature death would be ascertained on the basis of his career development as found above. In other words:

(1)  Until the end of 2015: as SO

(2)  From 2016 to the end of 2019: as FO

(3)  From 2020 to mid-2023: as SFO

(4)  From mid-2023: as Captain

Tam’s pre-accident income

135.  The pleaded income and average monthly income of Tam since September 2010 until his death in March 2015 was set out above. On a similar basis, the average monthly income of Tam as JFO during the period of 11.5 months between April 2014 and the date of his death, ie mid-March 2015 was calculated. The original pleaded total income during that 11.5-month period was HK$1,047,997, which was also the amount reported by CX in its employer’s return and adopted by the tax authority in computing Tam’s salaries tax for the period.

136.  When the trial commenced, the pleaded total income of Tam during that 11.5-month period prior to his death was revised to HK$1,034,150, and the average monthly income during that period was revised to HK$89,926.09. Consulting the primary evidence, which is the pay advices of Tam during this period, one would note that the income paid for each month actually consisted of items accrued in the preceding month. The revised pleaded amount also took into account the items accrued in March 2015 but paid only in April 2015 after Tam’s passing. The difference on the scale of things is relatively minor, and it does not appear that D2 takes issue about that either.

137.  However, worth noting is that the actual amount paid by CX and received by the pilot was after deductions made by CX, which typically included charges and perhaps more relevantly Tam’s voluntary contribution to his pension fund. In other words, the amount used in the calculation does not take that into account. This causes D2 to take issue when it comes to the calculation of Tam’s loss of pension benefits. This will be discussed in due course. Subject to the above, the average monthly income, all inclusive, for the 11.5 months prior to Tam’s death is noted to be HK$89,926.09, say HK$89,926.

Basic salary as FO, SFO and Captain since the date of the accident

138.  Tam’s basic salary as JFO in February 2015 immediately prior to this death was HK$64,737. It would have remained his basic salary for the rest of 2015 before his expected promotion to the rank of FO.

139.  On the basis that Tam would have been promoted to FO since 2016, the Mother says his average basic salary as such would have become HK$83,364.50. She is relying on CX’s pay scale, which shows that the basic salary of FO was subject to annual increment but capped at the fourth year as such. The average of such annual rates for the 4 years became such pleaded average basic salary of Tam as FO.

140.  However, the pay scale relied on by the Mother did not come into effect until 1 May 2016. In other words, Tam should have received his basic salary as FO during the first 4 months of 2016 according to the pay scale in force immediately prior to the 1 May 2016 pay scale. Such pay scale however is unknown from the evidence.

141.  Doing my best, I attempt a reverse calculation with some assumptions. The basic salary of Tam as JFO at the time of his death was HK$64,737. Under the pay scale with effect from 1 May 2016, that would have increased to HK$70,018. An 8% increment from the old to the new, that is. The basic salary of FO under the new pay scale started at HK$81,292. Assuming this represented a similar increment from before, the basic salary as FO under old pay scale before 1 May 2016 would have been HK$75,270. I come to this amount as what would have been Tam’s basic salary as FO during the first 4 months of 2016.

142.  Tam would have remained as FO until the end of 2019. The amount pleaded, ie HK$83,364.50 or say HK$83,365, mentioned above would have been his average basic salary under the new pay scale for the 3 years and 8 months since 1 May 2016.

143.  Tam would have moved up to the rank of SFO since 2020. The CX pay scale with effect from 1 May 2016 mentioned above applied. The basic salary of SFO would start at HK$88,361, which carried annual increment up to and capped at the 8^th year of service as such. The Mother pleaded the average basic salary of SFO of HK$96,751.50, which was the average of these 8 annual rates. This is questionable for multiple reasons.

144.  First, as it is found that Tam would have been SFO since 2020 for 3.5 years before further promotion, only the rates for the first 4 years as SFO under the pay scale would be relevant in ascertaining his average basic salary during that 3.5-year period.

145.  Second, as mentioned, all the Hong Kong based pilots were invited to migrate to new terms with effect from November 2020. Whilst CX’s letter explained that a lower than before basic salary was offered, the precise extent of reduction from the previous pay scale (since May 2016) is unknown from the evidence.

146.  Third, CX revised its pay scale further with effect from 1 January 2022. Under the new scale, the basic salary of SFO became a uniform rate of HK$59,210, which was a further reduced rate than before. The 2022 pay scale also expressly made clear that the rates might be adjusted downward if the air crew worked less than his minimum monthly block hours due to swapping. That is also unknown.

147.  Doing my best, the basic salaries of Tam as SFO during the period between 2020 and 2022 would be calculated as follows.

148.  For 2020, Tam’s basic salary as SFO would have been HK$88,361 pursuant to the pay scale since May 2016. For 2021, his basic salary as such would have dropped to a median between HK$88,361 and HK$59,210, ie HK$73,786. For 2022, his basic salary as SFO would have been HK$59,210 pursuant to the new pay scale for that year.

149.  The 2022 pay scale however would have lasted only for that year, because CX again revised its pay scale with effect from January 2023. This time the basic salary of SFO was adjusted upward to HK$61,164. This would have been Tam’s basic salary for the half year in 2023 before his further promotion to the rank of Captain.

150.  According to the same pay scale since January 2023, the basic salary of a captain was fixed at rates of 4 ranks, Captain 1 to 4. On the assumption that the rates represent annual ranking and increment as seen in the previous pay scales, and hence capped at the 4^th year, the basic salary of Tam since mid-2023 would have started as Captain 1 at HK$76,454 and increased to Captain 2 at HK$86,498 by now. The median between the two for the period since mid-2023 up to now would be HK$81,476.

151.  As of now, Tam’s basic salary as Captain 2 would have been HK$86,498.

152.  In summary, the (average) basic salary of Tam since his death would have developed as follows:

Period	Rank	Average basic salary
March 2015 – end 2015	JFO	HK$64,737
January – April 2016	FO	HK$75,270
May 2016 – end 2019	FO	HK$83,365
2020	SFO	HK$88,361
2021	SFO	HK$73,786
2022	SFO	HK$59,210
2023 – mid-2023	SFO	HK$61,164
Mid-2023 – present	Captain	HK$81,476
Present	Captain	HK$86,498

153.  Except for what is discussed below, any assumption in respect of any downward adjustment of the rates of basic salary on account of the qualification stated in the pay scale since 2022 as mentioned would in the absence of actual evidence be too arbitrary. I therefore adopt the above rates as the basic salary of Tam at different ranks but for his premature death for the purpose of assessment.

Other components of the monthly income

154.  As mentioned above, income of a CX pilot comprised various components on top of basic salary (“Other Income”). They included at one stage the following components:

(1)  Hong Kong Pilot Allowance (“HKPA”), being a fixed monthly allowance to Hong Kong based pilots;

(2)  Excess Flying Pay (“EFP”), being a payment for achieved credit hours in excess of a threshold in a month;

(3)  Hourly Duty Pay (“HDP”), being a payment for achieved credit hours other than those for which EFP is payable;

(4)  Qualification Pay, being additional payment upon attaining a specific period of service and specific qualification;

(5)  Employment Ordinance Adjustment, being adjustment for statutory entitlements in accordance with the Employment Ordinance;

(6)  Profit Sharing (“PS”), being annual payment as share of the company’s profits in accordance with company policy;

(7)  Discretionary Annual Bonus (“DAB”), being annual discretionary bonus to pilots with 12 months’ qualifying service as at the end of the relevant year.

155.  A few things to note about the Other Income.

156.  First, the pay advices of Tam show that during the 11.5 months immediately prior to the accident, the HKPA as well as, to a lesser extent, the HDP and EFP dominated his Other Income on a monthly basis.

157.  Second, the Other Income would vary from month to month, and some of them depended on the number of duty hours. This causes inherent difficulty when the assessment in the case of Tam has to be carried out largely on hypothetical basis. Further, CX had from time to time adjusted its Hong Kong based aircrew remuneration policy and terms, which also impacted on the Other Income. Again this court just has to do the best it can according to what the evidence manages to tell.

158.  Third, his pleaded average basic salary during the 11.5 months immediately prior to his death was say HK$56,601. His pleaded average Other Income during the same period was say HK$33,056. In other words, his average Other Income amounted to 58% (33,056/56,601 x 100%) of his average basic salary. This is close to the percentage arrived at by counsel for D2 but differs from the 65.5% pleaded by the Mother.

159.  Fourth, as to the state of affairs of the Other Income of the Hong Kong based pilots after Tam’s death, CX revealed that the PS paid in 2016 was HK$5,000 or half a month’s salary, whichever was lower. In view of his basic salary level, it would have been HK$5,000 in Tam’s case. The amount paid, as ex gratia payment, in 2019 was HK$2,000. No payment was made for the other years during this period. DAB in the form of a month’s salary was paid in 2016 and 2018, while less were paid in 2017 and 2019 as they were capped at HK$35,000 and HK$30,000 respectively. There is no information in respect of these or other components since 2020.

160.  I find adequate reason to believe that the income level of Hong Kong based pilots since the death of Tam could generally be maintained. Further, with effect from 1 May 2019 (not January 2019 as pleaded), the HKPA was revised. The HKPA for JFO, FO and SFO (years 1 to 4) were adjusted to HK$14,000, HK$18,000 and HK$22,000 respectively. The HKPA for JFO increased by HK$4,000 from before.

161.  There should be no reason for doubting that but for his premature death, Tam’s monthly income at least until the COVID-19 pandemic in 2020 would have increased in line with his promotion to FO and subsequently SFO. This basically falls in line with the pleaded case of the Mother.

162.  The Mother pleaded that the monthly income of Tam since 2019 would have comprised his basic salary, the HKPA, and the Other Income. However, the Mother’s pleaded calculation is flaw. HKPA was not newly introduced in 2019. The pay advices of Tam show that he had been receiving HKPA since April 2011 at the monthly rate of HK$10,000 as part of the Other Income. The HKPA terms with effect from May 2019 only increased the allowance rates for all ranks as mentioned above. Further, the Mother’s pleaded calculation by adding the HKPA to the Other Income, which already consisted of such component by the time of Tam’s death, is taking into double account of the component. Counsel for the Mother apparently acknowledges that, judging from the calculations set out in his submission.

163.  As mentioned, the HKPA for JFO, which Tam received before his death, was HK$10,000. That would have continued until the end of April 2019. The May 2019 change was the increased amount of HK$14,000. For each rank up, there was a HK$4,000 increase. On this basis, I assume that the HKPA for FO at the time of Tam’s death was HK$14,000. That with effect from 1 May 2019 also changed to HK$18,000 as mentioned.

164.  On the basis of Tam’s basic salary as FO in May 2019 would have been HK$83,365, his average Other Income at the rate of 58% of his basic salary would have been HK$(83,365 x 58%) = say HK$48,352. Increasing that by the HK$4,000 increase in HKPA with effect from May 2019, it would be say HK$52,352. As such, the increase in the HKPA in May 2019 would have brought about increase in the Other Income of Tam, inclusive of HKPA, to HK$52,352/83,365 x 100% = say 63% of the basic salary.

165.  Since May 2019, HKPA for SFO (years 1-4) and SFO (years 5-8) became HK$22,000 and HK$26,000 respectively. When Tam would have been promoted to SFO and remained as such for the following 3.5 years, he would also have been entitled to HKPA at the monthly sum of HK$22,000. The pleaded amount of HK$24,000 was the median amount of HKPA for SFO (years 1-4) and SFO (years 5 to 8). However, SFO (years 5-8) is not applicable in the case of Tam, as he would have been further promoted before then. Hence the pleaded HKPA amount is not accepted.

166.  Other than the HKPA of HK$22,000, the amount of other components of the Other Income which Tam would have received as SFO with effect 2020 is unknown. In view of the increase in basic salary and HKPA, I assume for the present purpose that the Other Income, inclusive of the HKPA, would still have been 63% of his basic salary. That however would not have lasted long.

167.  The COVID-19 pandemic started in the second quarter of 2020. Its impact on the business environment of CX and the remuneration policy of its Hong Kong based pilots surfaced later in the year. As mentioned, with effect from November 2020, all Hong Kong-based pilots were also requested to sign over to new conditions of service. Contrasting with before, the basic salary became relatively lower and supplemented by a variable Monthly Productivity Pay (“MPP”), which depended on the units of flying hours undertaken by the pilot.

168.  From Chan, we know his MPP as Captain in 2023 amounted to 59-60% of his basic salary. However, there is negligible evidence in respect of the MPP since its introduction in 2020 and the difficult times of CX since then until progressive recovery by the end of 2022. That said, on behalf of the Mother, it is accepted for the purpose of calculation that during the period so affected, Tam would have received his basic salary unchanged but without Other Income.

169.  D2 happens to be more generous, as counsel is prepared to take into account the continuation of HKPA during the pandemic period. It is common ground that the CX witnesses have received their HKPA as Captains in 2023, and the evidence does not impress that HKPA was actually suspended during the pandemic and only to resume in 2023.

170.  In the circumstances, I proceed on the basis that during the period affected by the COVID-19 pandemic, Tam would have received his basic salary unchanged but no Other Income except for HKPA. That is assumed to cover the period from April 2020 to the end of 2022.

171.  As discussed, 2023 marked the time when the passenger aviation business of CX began to pick up progressively. The basic salary of pilots was seen to be increasing across the board. That would have lasted until his further promotion to the rank of Captain in mid-2023. During the first half of 2023, when Tam would have been SFO, he is assumed to have resumed receiving his MPP in addition to his basic salary and HKPA. Using the MPP of Chan as Captain in 2023 as reference, which according to him amounted to about 60% of his basic salary, and factoring in the gradual recovery before that level was reached, this court will assume the MPP of Tam as SFO since 2023 would be about 40% of his basic salary.

172.  Assessment of Tam’s income as Captain since mid-2023 is relatively more straightforward. The CX witnesses stand as comparables in terms of average total monthly income.

173.  In the case of Chan, his basic salary upon promotion to Captain in 2023 was HK$76,454 as mentioned. According to the new policy with effect from 1 May 2019, he received HKPA in the sum of HK$32,000. By then, his other original allowances had been replaced by MPP as mentioned. The pay advices disclosed by Chan for the period between April and August 2023 show that his Other Income, including amongst others HKPA and MPP, on average amounted to no less, and sometimes more, than his basic salary. His monthly income (gross) during that period was mostly in the region of HK$150,000-170,000.

174.  The case of Lee was different due to his positing in the management instead of flight service. Instead of MPP, he was compensated by Management Pilot Allowance and Guarantee Productivity Pay. Together with the HKPA, his monthly income (gross) in the same period was in the region of HK$160,000, which in other words was comparable to the income of Chan in the same rank.

175.  On the basis that Tam would have stayed as a CX passenger pilot and reached the rank of Captain by mid-2023, he would have experienced the recovery of the CX business environment and thus increase in income as Lee and Chan did. As Captain since mid-2023, his basic salary, as calculated above, Tam’s monthly income should have been in the similar region as Chan and Lee managed to make. Hence say a round-up figure of HK$157,000, which is close to the figures proposed by counsel for both sides respectively.

176.  In summary, I find that the monthly total income of Tam from his death to the present would have developed as follows:

Period	Rank	Total Monthly Income
March 2015 – end 2015	JFO	HK$(64,737 + 64,737 x 58%) = HK$102,284
January – April 2016	FO	HK$(75,270 + 75,270 x 58%) = HK$118,927
May 2016 – April 2019	FO	HK$(83,365 + 83,365 x 58%) = HK$131,717
May 2019 – end 2019	FO	HK$(83,365 + 83,365 x 63%) = HK$135,885
January – March 2020	SFO	HK$(88,361 + 88,361 x 63%) = HK$144,028
April – end 2020	SFO	HK$(88,361 + 22,000) = HK$110,361
2021	SFO	HK$(73,786 + 22,000) = HK$95,786
2022	SFO	HK$(59,210 + 22,000) = HK$81,210
2023 – mid-2023	SFO	HK$(61,164 + 22,000 + 61,164 x 40%) = HK$107,630
Mid-2023 – present	Captain	HK$157,000

Loss of accumulation of wealth up to date

177. On the basis of the average monthly income which Tam would have earned but for his premature death as set out above, his loss of accumulation of wealth expected in his integrated bank account at the rate of 28.8% (above) up to trial would be as follows:

Period	Rank	Total Accumulation of Wealth
March 2015 – end 2015	JFO	HK$102,284 x 28.8% x 9.5 months = HK$279,849
January – April 2016	FO	HK$118,927 x 28.8% x 4 months = HK$137,004
May 2016 – April 2019	FO	HK$131,717 x 28.8% x 36 month = HK$1,365,642
May – end 2019	FO	HK$135,885 x 28.8% x 8 months = HK$313,079
January – March 2020	SFO	HK$144,028 x 28.8% x 3 months = HK$124,440
April – end 2020	SFO	HK$110,361 x 28.8% x 9 months = HK$286,056
2021	SFO	HK$95,786 x 28.8% x 12 months = HK$331,036
2022	SFO	HK$81,210 x 28.8% x 12 months = HK$280,662
2023 – mid-2023	SFO	HK$107,630 x 28.8% x 6 months = HK$185,985
Mid-2023 – present	Captain	HK$157,000 x 28.8% x 17.5 months = HK$791,280

178.  The total loss of accumulation of wealth since death and expected to be seen in Tam’s integrated bank account by now would have been HK$(279,849 + 137,004 + 1,365,642 + 313,079 + 124,440 + 286,056 + 331,036 + 280,662 + 185,985 + 791,280) = HK$4,095,033.

Future loss of accumulation of wealth

179.  The normal retirement age of a CX pilot is 65. This has not changed as a result of the transition of employment terms in November 2020 mentioned above. Tam should have been 38.21 years old now. That leaves a balance of working life of 26.79 years before retirement.

180.  At his current average monthly income of HK$157,000 as Captain, his post-trial loss of accumulation of wealth expected to be seen in his integrated bank account upon retirement would be HK$157,000 x 28.8% x 26.79 x 12 months = say HK$14,536,040.

Loss of pension benefits

181.  Tam had also accumulated wealth in the form of pension. Under the employ by CX, Tam was a member of the CX Provident Fund Scheme (“PFS”). Under the PFS, CX would make a monthly contribution of percentage of the monthly pensionable salary of the pilot. The monthly pensionable salary, according to CX, includes the basic salary and HDP only. But for the accident, Tam would have continued to accumulate wealth in the form of the monthly contribution made by CX towards his pension at the rates mentioned on top of his income. There is no dispute about that.

182.  It is therefore necessary to ascertain the HDP of Tam. According to the documents, the HDP of Tam as JFO during the 11.5 months immediately prior to his death on average amounted to about 12% of his basic salary. HDP was subsequently replaced by MPP as mentioned, but in line with the above, no Other Income is assumed for the period between April 2020 and end of 2022. In other words, the employer’s contribution would be based solely on the basic salary during that period.

183.  The employer’s contribution rate was 15.5% of his pensionable salaries until changed to 10% from January 2021. The contributions up to the present would be as follows:

Period	Rank	Employer’s contribution
March 2015 – end 2015	JFO	HK$ 64,737 x 112% x 15.5% x 9.5 months =HK$106,764
January – April 2016	FO	HK$75,270 x 112% x 15.5% x 4 months =HK$52,267
May 2016 – end 2019	FO	HK$83,365 x 112% x 15.5% x 44 months =HK$636,775
January – March 2020	SFO	HK$88,361 x 112% x 15.5% x 3 months = HK$46,018
April – end 2020	SFO	HK$88,361 x 15.5% x 9 months =HK$123,264
2021	SFO	HK$73,786 x 10% x 12 months = HK$88,543
2022	SFO	HK$59,210 x 10% x 12 months =HK$71,052
January – mid-2023	SFO	HK$61,164 x 140% x 10% x 6 months = HK$51,378
Mid-2023 – present JFO	Captain	HK$81,476 x 160% x 10% x 17.5 months = HK$228,133

184.  The loss of employer’s contribution since Tam’s death up to now would therefore have been HK$(106,764 + 52,267 + 636,775 + 46,018 + 123,264 + 88,543 + 71,052 + 51,378 + 228,133) = HK$1,404,194.

185.  There would have been another 26.79 years from now before Tam’s retirement. Tam’s average basic salary as Captain should be HK$86,498 now. MPP replaced the Other Income, except for HKPA. On the basis of MPP at the rate of 60% of his basic salary, his future loss of employer’s contribution to his pension at 10% would be HK$86,498 x 160% x 10% x 26.79 years x 12 = HK$4,449,180.

186.  No contribution from the employee is required under the PFS. However, there is no dispute that Tam had been making voluntary contributions towards his pension. CX confirmed that such contribution would be made at 5% or 10% of the basic salary and the DAB, if paid, at the option of the employee. Tam’s pay advices reflect that he had opted for 5% contribution every month. The Mother claims for the loss of such voluntary contributions which Tam would have made but for his death.

187.  D2 disputes the Mother’s entitlement on the basis that such claim amounts to double recovery when the amount of monthly income pleaded and adopted in the calculation so far has yet to take into account the 5% deductions made by CX as his voluntary contribution to the PFS from the amount payable to him every month. This is apparent from the pay advices. As such deduction is not given credit to by the Mother in the calculation of the monthly income received by Tam for the present purpose as mentioned, there is no loss of the voluntary contribution amount.

188.  I agree with D2. Unlike the employer’s contribution to the PFS, which was in addition to Tam’s monthly income, his own contribution would have had to come out of his own pocket. Insofar as the period since his death up to now is concerned, the monthly income so far calculated did not take into account the employer’s deduction of the 5% as shown in his pay advices. It cannot be said that Tam has lost the principal sum of his 5% voluntary contribution. The same applies after his death.

189.  That said, the Mother is not disentitled from claiming for the loss of investment return expected to be yielded from what would have been the contributions by Tam’s employer to his pension and those by Tam himself (being part of his income received). Such return will be factored in together with the countervailing rate of depletion by personal expenses to ascertain the net total accumulation of wealth by the natural death of Tam.

Total wealth accumulation

190.  The total accumulation of wealth of Tam would be HK$(4,095,033 + 14,536,040 + 1,404,194 + 4,449,180) = HK$24,484,447.

From retirement to the time of natural death

191.  The accumulation of wealth by the end of Tam’s working life as arrived at above should be subject to increase by investment return but depletion by Tam’s expenses since retirement until his natural death. As explained in the authorities, this is how one ascertains the net wealth left at the time of his natural death. Assuming the life expectancy of the Father equally applies to Tam, there would be a balance of be 88.44 – 65 = 23.44 years after his retirement.

192.  The parties differ in respect of the extent of deduction. On behalf of the Mother, 40% is proposed whereas 50% (at least) is proposed on behalf of D2.

193.  From the discussion above, one should get the picture of Tam’s lifestyle prior to this death. The evidence suggests that he had costly hobbies and interests, including cars as well as aviation and model airplanes. The family also travelled. There were also his personal expenses and tax liability. That also aligns with the extent of his contribution to the family household and savings as found.

194.  When Tam is expected to start his own family, his personal expenses would have taken a different form of supporting the new household and own family members. The state of the evidence does not afford this court with any basis for believing in a material change of such view on account of the possibility of his wife also working and earning income as well as the subsidies for the children obtained from his employment fringe benefits.

195.  However, by the time of Tam’s retirement, his children should have become financially independent. In view of his age, education background, lifestyle and multiple personal interests, there is basis for believing in the likelihood of Tam engaging in a fruitful retirement by devoting or resuming investing his time and resources in these personal interests and leisure. Medical expenses would be an added consideration.

196.  Balancing against that, however, would be the spare capacity from his own accumulated wealth which is expected to be enabled by the additional wealth derived from his share of his parents’ estate when they pass away. As the circumstances now stand, there will at least be the realization of the mortgage-free family home when the last one of the parents passes away, though the market value by then is too much of a matter of speculation.

197.  No precision is possible in the assessment in this respect in the circumstances. However, I am satisfied that 40% is the acceptable percentage of personal expenses out of his accumulated wealth. At this rate, the expenses would be HK$24,484,447 x 0.4 = say HK$9,793,780. The average annual personal expenses would be HK$9,793,780/23.44 = HK$417,823 or average monthly HK$34,819. This amounts to HK$417,823/24,484,447 x 100% = 1.71% of the total accumulated wealth when Tam retired.

198.  The proviso in section 20(2)(iii) of the LARCO cited above refers. Under the proviso is the mandatory deduction on account of accelerated receipt of the net wealth accumulated, and the extent of such deduction will be a matter of discretion of the court according to the circumstances of any particular case so as to avoid over-compensation: see also Chung Sui Cheong (above) at §§71; 369-371; Kan Wai Ling (above) at §129; Chiu Sui Ching (above) at §371. In a case where the receipt of the wealth accumulated by the time of natural death is accelerated for a substantial period of time, a case for deduction would be readily apparent: see Chiu Sui Ching (above); Chung Sui Cheong (above).

199.  There is dispute as to the rate of investment return to be adopted. The authorities mentioned above suggest 2.5% which D2 does not seem to object. Counsel for the Mother suggests 4.5%, referring to the bank deposit rate. The problem with that suggested on behalf of the Mother is that as discussed above, the loss of accumulation of wealth is assessed on the basis of what Tam had achieved in the form of what can be seen from his integrated bank account. The credit balances seen from time to time represented not merely savings but savings with interest in bank as well as his investment in equities such as foreign currencies. As such, this court takes the view that applying 2.5% on top of the accumulated wealth on such basis should be sufficiently fair in the circumstances.

200.  Hence, assuming the total accumulated wealth will carry a rate of return of 2.5%, but be depleted at the percentage as mentioned, this gives a positive percentage of 2.5% - 1.71% = 0.79% or translated into 0.0079. In other words, the accumulated wealth, notwithstanding depletion by personal expenses after retirement, would still have positively grown to HK$24,484,447 x (1 + 0.0079) = say HK$24,677,874.

Accelerated receipt between now and the date of natural death

201.  Tam would have been 38.21 years old now. Relative to his natural death assumed to be at the age of 88.44, the receipt by way of award now would have been accelerated by 50.23 years. Table 27 of the Chan Tables advises that the discount factor at the rate of 2.5% should be about 0.3.

202.  Applying the discount factor to the net accumulation of wealth, the amount should become HK$24,677,874 x 0.3 = say HK$7,403,362.

Funeral expenses

203.  The amount of HK$146,650 claimed is agreed.

INTEREST

204.  Interest on damages for bereavement runs at judgment rate from the date of service of writ to today.

205.  Counsel for D2 has set out her calculation of interest on bereavement. Bringing it up to date in accordance with the judgment rates since November 2023, ie since January 2024 at 8.875%, the total amount of interest up to date will be about HK$218,908.

206.  Interest on pre-trial loss of dependency and funeral expenses runs at half judgment rate from the date of the accident to today. Counsel for the Mother proposes to apply 4.399%, which was half the rate prevailing at the time of the trial over the whole period. Counsel for D2 argues that interest for the relevant period ought to be calculated in accordance with the prevailing judgment rate at its half.

207.  I believe what counsel for D2 seeks cannot be faulted. However, her calculation of interest on funeral expenses contains an error. Hence calculation as follows:

Date of accident to end 2018:

  HK$(880,542 + 146,650) x 4% x 1,391/365 = HK$156,583

January to March 2019:

  HK$(880,542 + 146,650) x 4.044% x 90/365 = HK$10,243

April to end 2019:

  HK$(880,542 + 146,650) x 4.0625% x 275/365 = HK$31,440

January to end March 2020:

  HK$(880,542 + 146,650) x 4.042% x 91/366 = HK$10,323

April 2020 to end 2022:

  HK$(880,542 + 146,650) x 4% x 1,005/365 = HK$113,132

January 2023 to end March 2023:

  HK$(880,542+ 146,650) x 4.0845% x 90/365 = HK$10,345

April to end June 2023:

  HK$(880,542+ 146,650) x 4.2915% x 91/365 = HK$10,990

July to end September 2023:

  HK$(880,542 + 146,650) x 4.331% x 92/365 = HK$11,213

October to end December 2023:

  HK$(880,542 + 146,650) x 4.399% x 92/365 = HK$11,389

January to mid-December 2024:

  HK$(880,542+ 146,650) x 4.4375% x 345/365 = HK$43,084

Total interest: HK$(218,908 + 365,658) = HK$584,566.

SUMMARY

208. In summary:

FAO	HK$
Loss of dependency up to date	880,542
Future loss of dependency
The Father	709,061
The Mother	789,589
Bereavement	220,000
LARCO
Loss of accumulation of wealth	7,403,362
Funeral expenses	146,650
INTEREST	584,566
TOTAL:	10,733,770

209.  Less agreed contributory negligence of 15%, the amount becomes HK$10,733,770 x 85% = say HK$9,123,705.

ORDER

210.  Accordingly, damages payable are assessed at the sum of HK$9,123,705 together with interest at judgment rate from the date hereof until payment.

211.  There will be a nisi order that the Mother shall have her costs of and occasioned by the issue of quantum of damages, including any reserved costs in respect of such issue, in the present action, which shall be taxed if not agreed. In the absence of application within 14 days to vary, the nisi costs order shall become absolute without further order.