WONG KIT CHUN v. WISHING LONG HONG

HCPI 349/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 349 OF 1996

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J U D G M E N T

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1. On 25 October 1993, Mr Cheung Chung Wai fell on a path when he was walking up a mountain to see the sunrise in the Huangshan Scenic Area in Anhui Province, China. He died in Hong Kong on 10 November 1993, aged 46, leaving his widow, the Plaintiff and 2 daughters. The Plaintiff brings this action against the deceased's former employer Wishing Long Hong claiming damages for negligence. An award for Employees' Compensation had been made to the widow on 19 May 1995 in the sum of HK$542,000.00 with interest.

Facts and matters not in dispute

2. I set out the facts and matters which are not in dispute and are relevant to the issue of liability.

3. The sole proprietor of the Defendant firm at the material time was Mr Zai Chung Ling. The Defendant's business was trading in cement and other building materials with suppliers and customers in Hong Kong and mainland China. The deceased was employed as the personal assistant and secretary of Mr Zai.

4. On 18 October 1993, the deceased went on an 8-day trip to China with Mr Zai. It was a multi-purpose trip, partly for business and partly for pleasure. They were to visit a number of cities, attend a ceremonial meeting of the Hsu Fu Association (an academic association to promote cultural exchange with Japan and Mr Zai was the chairman of its Hong Kong branch) in one of the cities, and to visit Huangshan on the last 3 days. Mr Zai wanted to do a geographical inspection of Huangshan as a reference for future investment. The accident of the deceased took place on the third and last day of the visit to Huangshan.

5. The trip was organized by the China Travel Service specially for Mr Zai. There were 6 persons going on the trip. They were Mr and Mrs Zai, the deceased, Mr Pang Kam Choi who was a free-lance photographer engaged by Mr Zai to take photographs for the trip, and Mr and Mrs Ho Lai Chiu. Mr Ho is a friend of Mr Zai and a member of the Hsu Fu Association. The expenses of the package tour for the entire party were paid for by Mr Zai. At the time of the trip, Mr Zai was about 80 years old, Mrs Zai about 68, and Mr Pang was about the same age as Mrs Zai. The deceased and the Ho couple were middle aged and the younger ones in the group. No one in the group had ever visited Huangshan before.

6. On 24 October 1993, the party checked into the North Sea Hotel. They were to set out early next day for the White Goose Ridge to see the sunrise. In the evening of 24 October 1993, 3 torches using batteries were purchased in a shop in the vicinity of the hotel. The party set out for the walk the next day with Mr Tung, a driver of the China Travel Service, and a local guide. The time when they set out from the hotel is in dispute but it is not disputed that when the deceased met with the accident, the sun had not risen. The deceased did not have a torch when he fell.

7. The path taken by the party is the only route from the Hotel to the scenic spot in the White Goose Ridge to see the sunrise. It was constructed with stones and cement. The width varies from place to place. It is about 8 feet wide in some parts and is generally wide enough for 2 or 3 persons to walk abreast. There are shallow ditches running across the path at irregular intervals. The ditches were constructed for the purpose of diverting rain water to the lower part of the mountain. The deceased had stepped into one of the ditches when he fell. This particular ditch measured about 4 inches wide and 4 inches deep. The ditches were in the same condition when the Defendant's loss adjusters visited the area in 1996. However, when the loss adjusters made a second visit in October 1999, it was found that parts of the path had been paved over with new cement and most of the ditches had been filled up or converted into concealed drainage.

8. After the accident, arrangements were made for a bed to be taken from the hotel and the deceased was carried in the bed back to the hotel by 4 sedan carriers accompanied by Mr Tung the driver. He was unable to move his limbs. The others in the party continued with their walk to the scenic spot.

9. At about 10 am that day, the deceased was taken to the Huangshan People's Hospital. He was discharged at 3 pm as he had decided to return to Hong Kong for treatment. The whole party took the return flight to Hong Kong that afternoon as scheduled and the deceased was admitted to the Queen Mary Hospital right away. He was conscious on admission with mild abrasion over the left frontal region, numbness of all 4 limbs and bilateral motor weakness of both upper and lower limbs. He was transferred to the spinal unit for further management. X-ray and MRI scan of the cervical spine showed prolapsed intervertebral discs at C3/4 and C4/5 level, the spinal cord was compressed by the prolapsed discs, and there was severe signal change of the spinal cord. The diagnosis was central cord syndrome. On 2 November 1993, anterior discectomy and spinal fusion at C3/4 and C4/5 level was done. He had slight neurological improvement and major recovery of power of the limbs was not expected due to the cord damage. Since he did not have any urinary sphincter control, a Foley urinary catheter was inserted. In addition, steroid was prescribed to decrease the spinal cord oedema to minimize the secondary spinal cord injury.

10. On 10 November 1993, the deceased developed high fever, chill and rigor. His general condition deteriorated suddenly and he was not responsive to antibiotic treatment. He passed away the same day, 16 days after the accident. The causes of death were acute prostatitis, acute splenitis and bronchopneumonia. The medical opinion is that these conditions might be related to the administration of steroid and urinary catheterization, which were essential to the treatment of the deceased. It is not challenged by the Defendant and I find that the deceased's death was cause by his injuries in the accident.

The witnesses

11. Mr Zai is unable to give evidence as he is suffering from dementia. The Plaintiff gave evidence of various discussions the deceased had with her before and after the accident. She also called Mr Pang as her witness. On the Defendant's side, Mr Ho and Mrs Zai gave evidence, as well as Mr Shum Kwong Ching of the loss adjusters.

12. As one may expect when witnesses are asked to recount an incident 7 years later, their recollection is necessarily incomplete and imperfect. Different people may have different recollection about different things and some may have different recollection about the same thing. The notable exception seems to be the Plaintiff who gave her evidence without wavering in any significant way from her witness statement and she claims to be able to give a faithful account of all the things the deceased had told her on various occasions 7 years ago. For this reason, I need to examine her evidence with care.

The Plaintiff's evidence

13. According to the Plaintiff, when the deceased came home at about 10 pm the day before the trip, he related to her a discussion he had with Mr Zai and Mr Pang in the office that day regarding the programme to Huangshan and the need for torches there. The deceased mentioned to the Plaintiff that Mr Zai said he would ask Mrs Zai, who happened to be in the office, to buy them. The deceased had also said to Mr Zai that 6 torches were needed because there were 6 people in the party. There was no dissent from Mr Zai or Mrs Zai about this.

14. The Plaintiff then gave evidence of a telephone conversation she had with the deceased in the evening of 24 October 1993. The deceased was unhappy because it was discovered that Mrs Zai had not bought any torches. The deceased spoke to Mr Zai and said that torches must be bought. Mr Zai then told the driver Mr Tung to buy them. The deceased asked Mr Tung to buy 6 torches. However Mr and Mrs Zai told the driver that 3 would be enough. The deceased queried if 3 would be enough and Mr Pang said he wanted a torch for himself since he had to take photographs. On hearing that, Mr Zai pulled a long face. As the deceased did not want to offend his boss, he did not press his request for 6 torches and Mr Tung bought 3 torches.

15. The next conversation related by the Plaintiff was one she had with Mr Ho in the Queen Mary Hospital on 25 October 1993. According to her, Mr Ho told her that he and the deceased had requested Mr Zai to hire sedan chairs to carry the party up the mountain. Mr Zai turned down their request and insisted they should all walk.

16. The Plaintiff said the deceased had given her a full account of his accident when the deceased was in the ward of the spinal unit. The deceased told her that the party had set out at about 3:30 am. Mrs Zai took out 3 torches, Mr Pang got one, Mr and Mrs Ho were given another, and Mr and Mrs Zai had the remaining torch. The deceased was not given any. Having walked a short distance, Mr Zai called out to the deceased to look after his wife as she was walking too slowly. Mr Zai went ahead with Mr Tung. Mrs Zai's torch was switched off and she told the deceased it was defective and served no purpose. After the deceased had supported Mrs Zai along for some distance, she said she was tired and she sat down to rest. Suddenly, they heard Mr Zai calling out and asking them to hurry up or else they would miss the sunrise. Mrs Zai tried to get up in a hurry and nearly fell down. As the deceased was anxious to stop Mrs Zai from falling, he did not pay attention to the surrounding and he stepped into a ditch when he was helping Mrs Zai. His head hit a stone. Mrs Zai called out for help. Mr Zai did not come over but merely sent Mr Tung to find sedan carriers to take the deceased back to the hotel. Mr Zai said the rest of the party should watch the sunrise first and not worry about anything else.

17. When the party returned to the hotel, Mr Pang blamed Mr and Mrs Zai for not buying enough torches and they had a quarrel.

18. It was accepted by the Plaintiff that a torch would have cost at most RMB18 in 1993. She was adamant that the deceased must get Mr Zai's permission for the purchase of torches.

19. In the course of her cross-examination, the Plaintiff was asked about her opinion of Mr Zai as a generous employer and a philanthropist on the basis of her own observation and what she had learned from the deceased. It is not necessary for me to make any finding on that account to resolve the relevant matters in dispute.

20. I am unable to accept the Plaintiff's evidence regarding the discussion in the office before the trip on the purchase of torches. Mr Pang, who gave evidence for the Plaintiff, denied that there was any such discussion before the trip. Mrs Zai said she did not go to the office of Mr Zai in 1993 and it was accepted by the Plaintiff that she rarely went there. The Plaintiff's answer in cross-examination that Mrs Zai was in her husband's office on 17 October 1993 and that Mr Zai asked her to get the torches as she was about to leave would seem to me to be an attempt to bolster her evidence. This was not mentioned in her witness statement. Furthermore, I find it inherently improbable that this discussion on the purchase of torches before the trip had taken place. No one in the party had been to Huangshan, they had no knowledge of the surroundings or whether there would be any lighting in the area. Even if any one had thought of torches for the visit, a torch is such a common item readily available for sale in China, there is no reason why the purchase could not have been made when they were there. It is also odd that neither Mr Zai nor Mrs Zai had said on this occasion that 3 torches would be enough and that both had seemed to agree with the deceased that 6 should be purchased, according to the Plaintiff's evidence.

21. I would deal with the events on 25 October 1993 before I return to the purchase of torches on 24 October. Regarding the time of setting out from the hotel, I find that it would be later than 3:30 am and not as stated by the Plaintiff. Mr Pang mentioned it was some time after 4 am Mr Ho's evidence was that they set out at around 5 am. I find that Mr Ho had walked in front with Mr Zai sharing a torch. Of the 4 persons who were behind, only Mr Pang and Mrs Zai had held a torch. It is unnecessary to make any finding whether Mrs Zai's torch was defective, which was denied by her, as on the Plaintiff's evidence Mrs Zai's torch was switched off when the deceased fell. I reject the Plaintiff's evidence that Mr Ho and the deceased had requested Mr Zai to hire sedan chairs for all 6 persons. I accept Mr Ho's evidence that a sedan chair was hired in case Mr and Mrs Zai, being the oldest in the group, would feel tired and need to be carried. It is the evidence of Mr Ho and Mrs Zai that Mr Zai had expressed a preference to walk. The carriers just followed or walked with the group carrying an empty chair.

22. I have considered carefully Mrs Zai's evidence about the walk. I prefer her evidence to the account given by the Plaintiff. She had made no attempts to embellish her evidence and she admitted frankly she was unable to recall many details when questioned about what she would regard as trivial matters. She had even stated she had no knowledge of a number of matters in her witness statement notwithstanding these matters are helpful to the Defendant's case. I accept Mrs Zai's evidence that she was walking on her own when she heard a sound and turned to discover that the deceased had fallen on the path. I reject the Plaintiff's evidence that Mrs Zai had sat down to rest, that she was about to fall when she got up in a hurry, and that the deceased was attempting to prevent her from falling when he inadvertently stepped into a ditch. The Plaintiff apparently gave an impression that the deceased was abandoned by his employer after the accident. I do not draw any inference from this that Mr Zai was uncaring towards the deceased. I accept Mr Ho's evidence that no one in the party had thought the deceased had sustained such a serious injury when they continued with the walk.

23. I also reject the Plaintiff's evidence that Mr Pang had blamed Mr and Mrs Zai in the hotel for not buying enough torches and that they had a quarrel there. Both Mr Pang and Mrs Zai had denied this. I also regard this as inherently unlikely. I think it more probable that Mr Pang had mentioned the inadequate number of torches to the Plaintiff when he comforted her in hospital and the Plaintiff was mistaken about the incident.

24. On the important matter whether Mr and Mrs Zai had disapproved of the deceased's suggestion to buy 6 torches and insisted on 3 being purchased, Mrs Zai had no recollection of any discussion on 24 October about the purchase of torches. She denied she had ever insisted that 3 torches be bought because petty cash would have been given by her husband to the deceased to buy trivial things during the trip as was her husband's practice and it was for the deceased to buy the number of torches needed. Mrs Zai also stated that it would be out of character for her husband to insist on buying 3 torches against the deceased's request, as her husband had paid a substantial sum for the entire expenses of the group.

25. Mr Ho remembered there was talk during dinner on 24 October regarding the purchase of torches. He said it was probably Mr Tung who mentioned that as they would set out in the dark to see the sunrise some torches should be bought. The response around the table was that torches should be bought after the meal. There was no further discussion at the dinner as to the number of torches or who was to buy them. Mr Ho went for a walk with his wife after dinner and did not see the others until they set out for the walk next day.

26. Mr Pang said he had asked the deceased about the purchase of torches the evening before they set out to see the sunrise and that he had only spoken to the deceased about this and no one else. He asked to have a torch because he had to take photographs and he was given one by the deceased the same evening because they shared the same room.

27. Thus, there is no direct evidence from Mrs Zai, Mr Ho or Mr Pang as to who made the decision to buy just 3 torches and who went to buy them. I am asked by the Defendant's counsel to find that it was the deceased who was responsible for getting the torches and that he bought or arranged to be bought 3 torches as he was the personal secretary accompanying Mr Zai on the trip. I am prepared to make that finding based on inferences drawn. As with much of the Plaintiff's evidence on liability, I have reservations whether events had happened in the manner as described by her. I am sceptical about the Plaintiff's assertion that the deceased would need to get the specific approval of Mr Zai before he was to buy an inexpensive item like a torch. I prefer Mrs Zai's evidence that the deceased was given petty cash by Mr Zai to buy small items during the trip. I think it is more probable than not that having given the deceased the money for this purpose, Mr Zai would not be too concerned as to how many torches should be purchased or that he would insist that only 3 torches should be bought. Lastly, it must not be forgotten that Mr Zai had already spent a substantial sum by paying for the expenses of all the others on the trip. It seems to me unlikely that Mr Zai should choose to economise on 3 torches or that Mrs Zai should concern herself with what she clearly regarded as a trivial matter.

The duty of care of the employer

28. Even though I reject most of the Plaintiff's evidence relating to the accident, I still have to consider whether the Defendant had exercised reasonable care as the deceased's employer on the findings I have made and the matters not in dispute.

29. The Plaintiff's counsel submitted that it was inherently dangerous for the party to walk on the mountain path in darkness with only 3 torches given the condition of the path. The Defendant's counsel submitted otherwise. I have viewed the 2 video films of the path, one taken in broad daylight in 1996 and the other taken between 5:30 am and 6:00 am in October 1999. The latter film is of rather poor quality because Mr Shum the photographer was unfamiliar with the video camera and did not realize that the auto focus would not function in dim light. As a result, much of the film is out of focus. Furthermore, the video film could only reflect 70% to 80% of what was seen according to Mr Shum.

30. I do not find that it was inherently dangerous for the party of 6 to walk on this mountain path before daybreak with only 3 torches to share so that a reasonable employer would not have proceeded with it without ensuring that there was a torch for each person. I accept that the path was not easy, and that one must be careful in walking on it especially before daybreak. However, I do not think the condition was so dark that one could not see the path. Mr Shum did not find it necessary to use a torch when he was walking along the path to make the video film at 5:30 am. Although the mountain side was dark, the whitish surface of the path shone through in contrast and was visible. Mr Shum also saw other tourists going up the path without a torch and he estimated he had seen about 20 people in groups of several persons. Mr Ho also stated he had seen other groups walking up the path and some did not carry torches. He said it was still possible to see the way without a torch and that the colour of the ditches in dim light would be darker in contrast to the surface of the stones. I also take note that the eyes would get accustomed to the dark surroundings after a while. According to Mr Ho, the deceased met with the accident about 20 minutes after the walk, that should have given the deceased sufficient time to get used to the dim condition.

31. The duty of an employer is to take reasonable care for the safety of his employee. The standard of reasonableness must be considered with regard to all relevant circumstances in a given situation. The employer and his wife were elderly people whereas the deceased was in his mid forties. None of them had been to Huangshan before. The employer had just recovered from a mild stroke the same year. The deceased was in good health, he was used to walking in a fast way and never had any accident when he had trekked up high mountains in Xiamen to buy timber for another business of the employer from time to time. He only had a mild degree of short-sightedness and astigmatism and he wore spectacles. It would have been more natural to expect the deceased to look after the safety of the employer and see to it that a sufficient number of torches be purchased rather than the other way round. The walk to see the sunrise was more in the nature of sight-seeing than work. The deceased was not obliged to accompany the employer on the walk.

32. As I have already found, it was the deceased who was responsible for getting the torches and that he bought or caused to be bought 3 torches for whatever reason of his own. I do not think a reasonable employer would be required to do anything further in these circumstances to guard against the risk of the deceased tripping on the path. As for the suggestions of the Plaintiff's counsel that the employer should have made enquiries from time to time as to how the rest of the party were doing when they were walking up the path, that he should have insisted his wife should take a sedan chair so that the deceased would have a torch of his own, and that he should have asked some of the party to stay behind until daybreak - and none of these are pleaded in the particulars of negligence - I do not think they are realistic criticisms in the particular circumstances.

33. I conclude there was no negligence and no breach of duty on the part of the employer.

34. If I am wrong in my conclusion, and if it should be found that the employer was in breach of his duty in not providing the deceased with a torch, I find that such failure to provide the deceased with a torch was not an effective cause of the accident on the Plaintiff's case. Assuming that the Plaintiff's evidence is accepted (which I have rejected) that the deceased was trying to save Mrs Zai from falling that he stepped into a ditch inadvertently in the agony of the moment, it seems to me unlikely that the deceased would not have tripped over even if he had been holding a torch.

35. For the above reasons, the Plaintiff fails in establishing liability on the part of the Defendant. It is unnecessary for me to make any finding of contributory negligence on the part of the deceased.

Quantum

36. It is strictly not necessary for me to rule on quantum having found against the Plaintiff on liability. Having heard evidence and extensive submissions on quantum, I think it is proper that I should rule on the various heads of damages claimed by the Plaintiff, in case I err on liability.

The employment and earnings of the deceased

37. The deceased completed Form 5 in an English secondary school. He had worked as a clerk in the Bank of America for over 20 years and was promoted from a junior employee to assistant manager. He left this bank because of a dispute with his new superior and went to work for the Chiyu Banking Corporation for a short time. The deceased came to know Mr Zai in his new job and was recruited by Mr Zai as his personal secretary. Apart from serving the Defendant firm, the deceased was also the manager of an associate company of the Defendant called Fook Hing Funeral Services Co. Ltd and was responsible for handling its business affairs and buying timber. He was the right hand man of Mr Zai and his salary was 3 times that of Mr Zai's son, who was then employed as the manager of the Defendant. The deceased's annual earnings at the time of his death were HK$236,453.60, giving a monthly total of HK$29,556.70.

38. The Defendant's business had suffered from about 1995 due to serious problem of bad debts with customers in China amounting to some HK$30 million. Virtually all staff of the Defendant were laid off by February 1996, well before the general economic downturn in Hong Kong. It was suggested by the Plaintiff that the deceased should have no difficulty of getting a job with comparable pay even if his employment with the Defendant was terminated. I have reservations about this in view of the lack of higher academic or any professional qualification on the part of the deceased, that he would be in his early fifties, and that chances would not be high for some one to secure a well paid job working for 2 companies in different positions. Doing the best I can on the limited evidence, I find that the deceased would probably have earned between HK$20,000.00 to HK$25,000.00 a month if he were to seek another position in 1996. I would take the figure of HK$22,500.00 as the average and adopt this figure as the monthly salary the deceased would have earned during the years of 1996 to 2000, taking into account the general fall in wages since the financial crisis in October 1997.

39. As for the years of the 1994 and 1995, I would accept the submissions of the Plaintiff's counsel and adopt an annual increase of 10%, having regard to the fact that the deceased had received an increase of about 13% when his salary was raised in 1993. Thus, the median monthly salary of the deceased in the period of December 1993 and December 1995 would be HK$32,660.00.

The dependency and multiplier

40. The Plaintiff's case is that the monthly dependency at the time of the deceased's death would be about HK$20,000.00, after deducting the items of expenditure personal to the deceased. This is accepted by the Defendant's counsel. The percentage of the monthly dependency over the deceased's income at the time of his death would be 68%.

41. Applying 68% to the projected earnings of the deceased between December 1993 and December 1995, the monthly dependency during this period would be rounded off to HK$22,200.00. As for the monthly dependency from January 1996 to present, I would apply a higher percentage of 75% to the projected earnings of HK$22,500.00, rounded off to a figure of HK$17,000.00, taking into account the breakdown of household expenditure and that the deceased would probably have economised on his personal expenses with a reduced income rather than cutting down significantly on his contribution to the family.

42. The deceased's elder daughter was aged 19 at the time of his death and was studying first year in a university. The younger daughter was aged 17 at the time and was attending Form 5. I accept the Plaintiff's evidence that the deceased would have supported his daughters through tertiary education and probably during the initial years of their careers until they are to become financially independent. It seems to me that the pattern of financial support that the deceased would have given to his family is unlikely to change significantly in the pre-trial period of December 1993 to March 2000, a total of 76 months. It is not necessary to make any apportionment with regard to the Plaintiff and the 2 daughters for the dependency during the pre-trial period.

43. For the post-trial period, the daughters would probably cease to be dependent on the deceased. Both sides have accepted that the Plaintiff's dependency should be 50% of the deceased's contribution and I propose to adopt this approach.

44. As for the multiplier, the Plaintiff's counsel has proposed 12 years overall whereas the Defendant's counsel has put forward 9 years at most. I would use a multiplier of 12 years, having considered the multipliers adopted in there cases of fatal accident: Chong Choi Woon & Anr v. Whampoa Marine Terminals Ltd HCA No. A 1492 of 1987, 16 November 1988, Master Perrior; Chan Sim Lan & Anr v. Sheen State International Ltd & Ors [1994] 2 HKLR 173, Kaplan J; Ho Pang Lin & Anr v. Ho Shui On & Anr [1994] 2 HKLR 313, DJ Jones; and Tsang Mei Ying & Anr v. Lam Pak Chiu & Anr [1999] 2 HKLRD 807, Seagroatt J.

Loss of accumulation of wealth

45. I do not think it appropriate to make an award for loss of accumulation of wealth in this case based on a multiplier and multiplicand. The problem with this approach is that there is insufficient evidence to make such a mathematical calculation. I note that the deceased had accumulated no savings and acquired no assets notwithstanding he had been holding steady jobs for more than 20 years and was earning a good salary for at least about 3 years prior to his death. I accept that this might well be due to the fact that he had 3 dependants to support. The only basis relied on by the Plaintiff's counsel as some indication that the deceased would probably have accumulated savings was the 2 insurance policies taken out by the deceased in the 1980s for himself and his wife with a savings element and for which the deceased had been paying monthly premium of about US$74.00. The combined cash value of the 2 policies, when they are fully paid up in about 30 years' time, is less than HK$170,000.00.

46. I do not think it realistic to find that the deceased would have accumulated savings of some kind during the pre-trial period. I accept that the deceased would have greater opportunities of making some savings when his 2 daughters should cease to be supported by him. As against that, I should balance the need for the deceased to support himself and his wife after his retirement until the time of his death from natural causes. I should also make a discount for accelerated receipt. I think it would be appropriate to make a global award in this case, following the approach in Lam Po Yuk v. Mercury Shipping Co. Ltd [1997] 3 HKC 655, Master Cannon; Kwan Lai Kuen v. National Insurance Co. Ltd [1998] 1 HKC 98, Keith J; and Cheng Ching Muk v. Wah Nam Travel Service Ltd. [1999] 1 HKC 100, Master Ho. I consider an appropriate amount to be awarded in this instance is HK$250,000.00

Pain and suffering and loss of amenities

47. The Plaintiff claims HK$150,000.00 for the pain and suffering of the deceased who had lived for 16 days after he sustained injuries. Lam Po Yuk, supra. is relied upon. The Defendant offers a sum of HK$50,000.00. Having considered the nature of the injuries, the treatment received, the period of survival, and the sudden deterioration in the deceased's condition, I think an appropriate award under this head would be HK$80,000.00.

Awards under various heads of claim

48. I set out the awards I would have made in respect of the various heads of claim if the Plaintiff had been able to establish full liability and assuming there was no contributory negligence.

Under FAO

1) Damages for bereavement

The statutory award is HK$70,000.00

2) Pre-trial loss of dependency

The amount is HK$22,200.00 x 25 months + HK$17,000.00 x 51 months = HK$1,422,000.00

3) Post-trial loss of dependency

The amount is HK$17,000.00 x 50% x (144 - 76 months) = HK$578,000.00

Under LARCO

4) Pain & suffering and loss of amenities

The amount is HK$80,000.00.

5) Loss of accumulation of wealth

The global amount is HK$250,000.00

6) Damages to clothing

The agreed amount is HK$2,000.00.

The total award I would have made is HK$2,402,000.00.

49. I would have awarded interest on damages as follows:

1) On damages for bereavement

I would have awarded interest at the prevailing rate of interest payable on suitors' funds from the date of the deceased's death, following the decisions of Chu Kang Yee v. Giant Ocean Ltd [1996] 1 HKC 284, Cheung J and Kwan Lai Kuen, supra.

2) On damages for pain and suffering

Interest would be at 2% p.a. from the date of the writ.

3) On pre-trial loss of dependency and damages to clothing

Interest would be at half the judgment rate from the date of the deceased's death.

50. The Plaintiff has acknowledged that credit should be given for the compensation and interest received in Employees' Compensation in the total sum of HK$591,902.39.

Costs

51. As the Plaintiff has failed to establish liability, I make an order nisi that the Defendant should have the costs of this action. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.