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1984, No. 3253
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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BETWEEN:
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SHUM LAI HING, the administratrix of the estate of MOK KAM WING, deceased. |
Plaintiff |
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and
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HUI TING HANG |
1st Defendant |
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and
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LAW CHUNG WING |
2nd Defendant |
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Coram: Master Hansen in Chambers
Date of Hearing: 22nd October 1984
Date of Delivery: 3 December 1984
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ASSESSMENT OF DAMAGES
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1. Mok Kam Wing was killed in a motor accident on the 20th February 1982. At the time of his death the deceased was aged 42, was single and employed as a plumber.
2. Legal Aid was granted in March 1983 and the statement of claim was issued on the 15th May 1984. Interlocutory judgment was entered on the 19th July 1984 and the Notice of Appointment of the Assessment of Damages was filed on the 13th September 1984. On the 19th September 1984 leave was granted to the Grand Union Motor Insurance Co. Ltd. to be joined as a party to the hearing of the assessment of damages.
3. Pursuant to a notice under S:47 of The Evidence Ordinance and 038 RSC the following documents were adduced in evidence: -
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1. |
Letters of Administration 4283/83 |
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Hang Seng Bank Savings Account Book No. 294-2-036084 |
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3. |
Hong Kong Savings Bank Account Book No. 119-3-004692 |
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4. |
Hong Kong & Shanghai Bank Savings Account Book No. 015-1-044757 |
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5. |
Hong Kong Identity Card No. XXXXXXX |
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6. |
Form 2, Employees Compensation Ordinance |
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7. |
International Funeral Parlour receipt |
4. Funeral expenses were agreed between the parties in the sum of $6,000.
5. The plaintiff Shum Lai Hing gave evidence. Also called by the plaintiff was Miss Lo of the Census & Statistic Department of the Hong Kong Government. The 1st defendant gave evidence on his own behalf. The 2nd defendant elected not to give evidence. However, he was called by Mr Wong and gave evidence an behalf of the Grend Union Motor Insurance Co. Ltd.
6. Madam Shum was the aunt of the deceased. She said the deceased came to Hong Kong in 1962 and in the period up to his death she had regular contact with him. She said the deceased's father and step-mother lived in China. She stated that the deceased lived in a room in Mongkok - the receipt she received from the land lady showed monthly rent payment of $260.00. From what she had been told it appeared that the deceased cooked and ate most of his meals at home. She also gave evidence of varying amounts of money sent back to China by the deceased. It was clear from her evidence that the deceased sent money back to his father. I am satisfied that this witness did her best to recollect how much was sent. Indeed some of the money was taken back by her. However, not surprisingly, she could not give accurate details of the sums involved or their frequency. Sometimes it was $100-$200. Sometimes $300-$400. Sometimes she would go back 3 to 4 times a year. On other occasions it would be twice a year.
7. She agreed in cross-examination that some years she did not take money back for the deceased. She also agreed that apart from a bank account containing $15,000 the deceased left no other property of any real value.
8. The rest of the evidence called by the plaintiff and the defendants dealt with the plaintiff's income and what it might have been at the time of the hearing. It is unnecessary to review this evidence as Mrs Barnes conceded that the appropriate figure at the date of the hearing was $150 per day. Counsel also agreed that the deceased worked 26 days per month.
9. Mrs Barnes submitted that this was a case when the FAO and LARCO awards did not merge. She said the step-mother had a dependency under FAO. That is a submission I cannot uphold. There was evidence that the deceased sent money to his father. However, there was no evidence that the step-mother had any degree of dependency. Indeed, the plaintiff did not even know the age of the step-mother. In the circumstances the LARCO and FAO awards merge.
Lost Years
10. Counsel agreed the appropriate multiplier was 7 years. This gave 32 months pre-trial and 52 months post trial.
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(i) |
Pre trial loss |
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Mrs Barnes submitted that the appropriate multiplicand is to be arrived at by taking the median figure between $124 (i.e. what the deceased earned per day at the time of his death) and $150 (i.e. the agreed daily earning figure at the date of our hearing. That figure is of course $137. |
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Mr Wong said there was no reason to increase the figure from what the deceased was earning at the date of his death. |
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Mrs Barnes' submission is a sensible one and I uphold it. Pre trial earnings, therefore, are : |
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$137 × 26 (days worked per month) × 32 (month since death)= $113,984.00. |
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Mrs Barnes said from this should be deducted tax and the deceased's personal expense to give the free balance. Having allowed for tax ($560 p.a. on $124 a day and $1,350 p.a. on $150 a day) she submitted the balance of the deceased's expenses would be food $1,000 p.m., rent $260 p.m., gambling and miscellaneous items $400 p.m. Allowing for all these items Mrs Barnes submitted the deceased's personal expenses and tax amount to 43% of his income, therefore the free balance must be 57%. |
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Mr Wong, however, submitted that the free balance should be 45%. In support of this he relied on the Master's decision in Chan Ng-mui (Administratrix of the Estate of Leung Wing Kin, Tony v. Chan Lau-chu and Wong Chau Hung HCA 9989/82. He submitted this case supported a conventional free balance in a single man of 45%. However the free balance in that case was 55% and the 45% was the amount deducted for the deceased's personal expenses. Further in Wong Shue Wan v. Wu Kwok Yan, Simon CA 97/84 the Court of Appeal expressly disapproved of any notion of a conventional free balance in fatal accident cases. |
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There is of course evidence in this case of a free balance. The quality of the evidence, however, was of such a nature that a precise arithmetic calculation of the free balance is impossible. The aunt gave no details of the deceased's expenses other than his rent. Doing the best I can on the evidence adduced and accepting that the figures suggested by Mrs Barnes are not unreasonable, and are as close to accurate as is possible in this case, I assess the free balance in this case as 55%. There is a degree of guesswork involved in arriving at this figure but I gain support from the comments of Sir Alan Huggins, V.-P. in Wong Shue Wan v. Wu Kwok Yan, Simon (Supra) at the bottom of page 4 and the top pf page 5 of the judgment. The pre trial loss is, therefore, 55% of $113,984.00 = $62,691.20. |
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(ii) |
Post trial loss |
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Using the agreed multiplicand and multiplier the loss of earnings was: |
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$150 (daily income) × 26 (days worked per month) × 52 (balance of agreed 7 years multiplier) = $202,800. The post trial loss is 55% of this figure, i.e. $111,540.00. |
Lost of Expectation of Life
11. Mrs Barnes referred me to the decision of Mantell, J. in Lai Tat Wah, administrator of the Estate of Lai Tin Sung, deceased v. Franki Contractors Ltd. 11169/83 at page 5 ........." I think the time has come for the so-called conventional award for loss of expectation of life to be increased to $20,000 and that is the award I make". Mr Wong, however, urged me to stay with the old figure of $15,000.
12. Mrs Barnes is clearly correct in her submission and I award $20,000.
Summary :
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Agreed Funeral Expenses
Pre Trial LARCO Loss
Post Trial LARCO Loss
Lost of Expectation of Life
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$6,000.00
$62,691.20
$111,540.00
$20,000.00
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$200,231.20 |
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13. I make an order for interest at 6.75% p.a. on the pre-trial damages under LARCO and the funeral expenses for the period from the date of the accident to the date of trial. I make an order for interest on the award at loss of expectation of life at 2% p.a. from the date of the issue of the writ to the date of trial. There will be costs to the Plaintiff to be taxed failing agreement. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations. There will be a certificate for counsel.
Representation:
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Mrs J. Barnes instructed by Director of Legal Aid for Plaintiff |
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Mr H.L. Wong instructed by C.T. Chan & Co. for Grand Union Motor Insurance Co. Ltd. |
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1st & 2nd defendants in person |
The proceedings were explained by the interpreter to the 1st and 2nd defendants.
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