CHONG CHOI WOON AND OTHERS v. WHAMPOA MARINE TERMINALS LTD.

1987 No.A1492

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On the 9th January 1986, Lui Yee Shing was killed during the course of his employment with the Defendant. He was 40 years of age at the time. The writ was issued on the 16th March, 1987 and interlocutary judgment was entered on the 7th April, 1988.

2. At the date of his death the deceased was employed as a coolie/labourer and had been so employed by the Defendant for 16 years prior to his death.

3. Further, it was agreed -

(a) that the deceased was, a married man with 4 dependant children;

(b) he had no forseeable prospects of promotion;

(c) his salary, as at the date of his death, including overtime, was $4,702.00 per month; and

(d) his salary, including overtime, would have been $4,925.00 per month in 1987.

4. The Plaintiff called 4 witnesses, 2 in relation to the funeral accounts and the deceased's wife and daughter.

5. I can deal shortly with the funeral accounts. On the face of it funeral expenses in the sum of $34,060.00 for the burial of a man of the deceased's humble station in life may appear to be somewhat on the high side then this issue was first canvassed there was some suggestion that the deceased had been buried in accordance with both the rites of the Catholic Church and Buddhist Religion and that the headstone was of such a size as to amount to a monument and thus by applying Hart v. Griffiths - Jones [1948] 2 All F.R. 729 be irrecoverable.

6. On the basis of the evidence of the Plaintiff's witnesses I am satisfied that there was no duplication of religious ceremonies, the work of the undertaker and the custodian of the cemetery was complementary, and the headstone was no more than was reasonable, certainly not amounting, to an extravagant monument. Hence, I allow the Plaintiff's claim for funeral expenses in the sum of $34,060.00.

Loss of Expectation of Life

7. Mr. de Boinville submitted that the time has come for, the conventional award of $20,000.00 to be reviewed. Firstly, because some years had elapsed since it was last increased and secondly, it seemed particularly appropriate to review it at this point in time, i.e. following the general review of the level of awards of damages in personal injury actions in Lau Che-ping v. Hoi Kong Ironworks Godown Co. Ltd. C.A. No. 12/88. He suggested that a figure of $22,000.00 would be appropriate.

8. Not unnaturally perhaps Miss Remedios urged me to leave well alone and award the present conventional sum.

9. I advised Counsel that before I made a ruling on this point I would consult with my colleagues. This I have done and the consensus of opinion is that the time has indeed come for a review of the quantum of this award and that it should be increased to $30,000.00. I concur with this view and accordingly award $30,000.00 under this head of claim.

Loss of Earnings

10. As indicated earlier in this assessment, Counsel agreed that the deceased's monthly salary in 1986 was $4,702.00, including overtime, and in 1987 was $4,925.00, again including overtime. Similarly, there was agreement between them that the deceased's salary in 1988 would have been $5,197.00 including overtime. The monthly overtime element in these years was $1,655.00, $1.600.00 and $1,600.00 respectively.

11. Where the parties were not in agreement was the manner in which I should treat the Defendant's contribution to a provident fund for the benefit of the deceased initially of 5% of his basic income and rising to 10% at the age of 45.

12. Mr. de Boinville submitted that I should take this into account. At first sight this is an attractive proposition, but as. Miss Remedios pointed out a death benefit of $110,052.00 was paid out of the said provident fund to the deceased's estate. Hence, although a retirement gratuity of about $160,000.00 would have been paid to the deceased if he had lived to the age of 60, her argument went that when given the modest contribution to date and the advance payment, the one cancelled out the other. This is a fairly robust approach, but one with which I concur. Hence I calculate the pre-trial loss of earnings as follows:-

13. As to the free balance, Mr. de Boinville submitted that it should be 84.16% whereas Miss Remedios contented that the figure should be 70%, for the pre-trial lass and 55% thereafter.

14. Evidence was given by the deceased's wife and daughter, which I accept in general, to the effect that the deceased was a very hardworking man generous to his family, who, by virtue of his employment, did little more than sleep at the family home and have the occasional evening meal there. I was told that he gave his wife $4,000.00 each month, paid the water bills (such as they were), and from time to time gave her additional sums of money to help out with the family exchequer.

15. However, the deceased's wife when giving a detailed account of the household expenditure could only account for about $3,500.00 per month and mentioned that the deceased bet on horses on most race days. I accept that the deceased was not a big punter, but nonetheless such regular expenditure, when coupled with his other expenses such as meals during the day and travelling, lead me inescapably to the conclusion that even accepting the deceased's relatively frugal way of life, to accede to Mr. de Boinville's submission would be far too generous and that Miss Remedios was correct in her assessment that the figure should be 70%.

16. As to the post-trial assessment of the free balance there are additional factors which lead me to believe that the free balance should he reduced. The deceased's eldest daughter is 18 years of age, and the ages of his other children range from 10 to 15.

17. The eldest daughter has left school and, despite her protestations to the contrary, clearly has no realistic prospects of continuing her education. Similarly, whilst the deceased's wife quite naturally wishes her other children to further their education as far as they can, there is nothing to suggest that they are likely to aspire to tertiary education.

18. Thus, whilst the deceased has shouldered a heavy burden in the past, if he had lived it would have eased already and the next few years would have seen it easing still further as his children left school to enter the business world.

19. I consider that however willingly the deceased may have shouldered the heavy burden of his family responsibilities and however frugal his way of life may have been to date, the time must have come, and probably sooner rather than later, when be would have been able to afford a few luxuries and would have wished to have done so. There are few people who live a frugal life because they want to rather than because they have to.

20. The degree to which the deceased's spending pattern would have altered must, in my judgment, have been significant, but beyond that I cannot go for to do so would be to enter into the realm of "pure" speculation. All 1 can say with any certainty is that he would have spent more money on himself. In these circumstances, I consider that, as Miss Remedios submitted one should adopt the conventional figure of 55%.

21. So far as the multiplicand for e assessment of post trial loss is concerned, after discounting the Plaintiff's claim for the provident fund contributions, Counsel are agreed that it should be $5,497.00 per month. I accept that figure.

22. As to the multiplier, the deceased was an exceptionally fit man of 40 yars of age and a manual worker. Counsel have referred me to a large number of authorities and on the basis of these, the deceased's age, state of health and the nature of his employment I consider that a multiplier of 13 would be correct.

23. I Before I summarize the awards made in this assessment there is one final matter with which I must deal. Mr. de Boihville submitted that I should award a further $50,000.00 for loss of increment and bonuses. He produced no authority to support this submission and I reject it.

24. A summary of the damages awarded on this assessment is as follows:-

25. This award under LARCO will merge with any claim under FAO, the only beneficiaries being the widow and the infant children of the deceased. The award will he apportioned as follows:

26. The awards to the deceased's children are to be invested with the Registrar, Supreme Court on the usual terms until they reach their majority.

27. Interest will be at the rate of 2% per annum on the damages for loss of expectation of life from the date of the writ to the date of this assessment.

28. Interest on the funeral expenses and pie-assessment loss will be at the rate of 4% from the date of death to the date of this assessment.

29. There will be no interest allowed on the award for future loss of earnings.

30. I will hear from Counsel on the question of costs.