CHAN SIM LAN AND ANOTHER v. SHEEN STATE INTERNATIONAL LTD. AND OTHERS

HEADNOTE

Fatal accident - whether claim for bereavement is to be sum applicable at date of death or trial - Chow Oi Yee v. Chow Kan To not followed - whether mother in law is an ascendant within Ordinance - accumulation of wealth claim under s.20 LARCO - whether in absence of any pattern of savings it is correct to take a notional figure of 10% - decision of Nazareth J. in Chan Yuk Ying et al v. Chan Cheung Wan not followed.

1992, No.A747

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. At about 10 a.m. on 15th June 1989, Lau Chuen Fat (the deceased) was working on the 19th floor at a construction site known as Tsuen Wan Town Lot 125, Wang Lung Street, Tsuen Wan, when he fell to his death down lift shaft No. 3.

2. This action is brought by the administratrices of his estate for the dependents of the deceased under the provisions of the Fatal Accidents Ordinance, Cap. 22 and for the deceased's estate under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23.

3. The 1st defendant was the main contractor. The 2nd defendant was a sub-contractor. The 1st and 2nd defendants have been represented by the same counsel and solicitors.

4. The 3rd defendant was a sub-sub-contractor for bar fixing works at the site. The deceased was employed by the 3rd defendant.

5. Shortly before the commencement of this action, the solicitors acting for D3 sought and obtained permission from the Master to come off the record on the grounds that they could not make contact with D3 or his wife. However, I am satisfied from the evidence that was placed before the Master that the 3rd defendant had been informed of the hearing date. He has chosen not to attend the trial or be represented, and I therefore decided to proceed in his absence.

6. Fortunately, this is one of those cases where there is no real dispute as to what actually happened. It appears from the evidence that I have heard, and which I accept, that at about 10.00 a.m. someone was sent by D3 to buy food and refreshments for the workers, including the deceased, who were working at the 19th floor level. D3 paid for these refreshments. When these refreshments had been purchased they were lifted by the tower crane to the 19th floor and swung over to the vicinity of lift shaft No. 3 where Mr. Szeto Kwong, who was also employed by D3, placed them on some planks which partially covered lift shaft No. 3. A little later, the deceased was informed by D3 that the workers could stop for refreshment and so he went towards the point where the refreshments had been deposited. No one actually saw what happened next, but some heard the sound of breaking wood and then the deceased was seen to be falling down the lift shaft. He died from these injuries.

7. It is common ground that lift shaft No. 3 was not properly boarded on the day of the accident, and Mr. Chick, D1's safety supervisor, agreed that it was dangerous. However, he contended that the deceased should not have been in the vicinity of this lift shaft.

8. Unboarded lift shafts are well-known to be death traps. Many cases come before these courts involving injuries or death caused by persons falling down lift shafts. That is why they have to be boarded. If properly boarded, they would in all probability prevent people or objects falling down from a great height. They are boarded in order to prevent any one from falling down the void - not just those who may legitimately have work to carry out in that vicinity. The argument in this case that the deceased should not have been in the area of the lift shaft is, in my judgment, irrelevant. These shafts are boarded in order to discharge the common duty of care that an occupier owes to all persons lawfully on the site.

9. I accept that there is a critical time just after completion of the lift shaft at any given floor. The void cannot be boarded at once as it takes time. In this case, there were seven lift shafts. The photographs taken by Mr. Chan, the factory inspector, on both 15th and 17th June 1989 showed that some lift shafts were more closely boarded than others.

10. In my judgment, it is at this crucial time that both D1, as occupier, and D3, as employer, should be especially vigilant for the safety of those working on site. I can see no reason why explicit warning signs were not placed around the unboarded lift shafts including No. 3. In addition, specific oral warning should be given to the workers by the safety supervisor or the general foreman of D1. Further, similar warnings should be given by D3 as employer of the deceased.

11. Still further, these unboarded lift shafts should have been properly fenced off. Mr. Chick attempted to argue that the upright starter bars served this purpose, but I disagree. Had they been roped laterally at two levels around the void that might have been better. As it was, there was no real attempt to make lift shaft No. 3 safe for those who might, for whatever reason, be in this vicinity.

12. In my judgment, the photographs taken by the factory inspector speak louder than words. These lift shafts were in a disgraceful state. D1, as occupier, has clearly not discharged his common duty of care under the Occupiers Liability Ordinance. In fact, they got nowhere near to discharging this duty.

13. The matter does not end there because on the evidence, which I accept, both D1 through their servant, the tower crane operator, and D3 personally, and through Mr. Szeto Kwong, were both involved in placing the workers' refreshments on some planks which went across lift shaft No. 3. The unfortunate deceased, who appeared to be responsible for bringing workers to the site for D3, was then obliged to go to this dangerous place to collect the refreshments for these workers. Mr. Szeto Kwong who was ill- advised enough to place the refreshments in this place when he took them off the sling graphically explained to me how he had to have one foot on the beam and the other on a wooden batten over the shaft. He also stated that D3 had informed him to put the refreshments in this place when he himself would have sensibly put them on the wooden form work of the floor.

14. It seems to me clear beyond doubt that D1 as occupier is in breach of its statutory duty under the Occupiers Liability Ordinance. Further, D1 is liable for breach of the common law duty of care.

15. D3 was clearly in breach of his duties that he owed to his employee, the deceased. He appears to have taken no precautions at all for the safety of the deceased and what is more set up a system relating to the placing of the refreshments which was a virtual certainty for disaster.

16. I am somewhat surprised that both D1 and D3 thought it proper to contest liability as against the estate. Their attempt to blame the deceased because he was an experienced worker fails completely in my judgment. The elementary precautions which should have been taken, but were not, should have been designed to prevent both experienced and inexperienced workers alike. I can see no basis whatever for reducing the liability of D1 and/or D3 on the grounds of the deceased's contributory negligence. The figure of 70% contended for by Mr. Lo, on behalf of D1 and D2, on the facts of this case was outrageous.

17. So far as the case against D2 is concerned, I am not satisfied that there is sufficient evidence before me to justify a finding against him and I therefore dismiss the claim against D2.

18. Hong Kong's record for construction site safety is appalling. Recent figures showed that one out of every three employees on construction sites are injured at work. In 1993, it looks possible that over 100 construction site workers will be killed at work. It is also understood that injuries on works connected with the new airport are running at an unacceptable level. This appalling statistic can only be reversed if all concerned with construction sites make a real and determined effort to guard against the obvious risks connected with construction sites. Lift voids are dangerous places. They should be properly boarded so that men and objects do not fall through them. The quality of the wood used should be sufficient to ensure that it does not, as in this case, break under the weight of a workman. Before boarding can be completed, the area should be roped off and specific oral and written warnings should be given to the workers on site. Safety supervisors should ensure that they are on site more frequently at crucial and dangerous parts of the building operation. In this case, Mr. Chick cannot wash his hands of liability by reason of a short daily visit to the site.

He should have given explicit instructions to D3, to D3's workers and to his own general foreman.

Evidence on Quantum

19. Madam Chan, the widow, gave evidence on quantum. At the time of the accident, she and the deceased lived with a daughter then aged 9 at Kam Cheung Temporary Housing Area in Kowloon. Madam Chan did not work. Both she and her daughter were wholly dependent upon the deceased.

20. Madam Chan tells me that at the time of the accident the deceased's wages were $410.00 per day. He worked from approximately 6.30 a.m. to 7.00 p.m.. She said he was hardworking and she thought he worked about 28 or 29 days per month. He also introduced work to his co-workers and by doing this, he was able to earn a commission at the rate of $10 per worker per day. The deceased was paid on a daily basis and he gave Madam Chan $200.00 a day.

21. At the time of the accident, the family expenses were;

(1) Monthly household expenses

(a) Rent	$105.00
(b) Electricity	about $300.00
(c) Water charges	$50.00
(d) Phone charges at $142 per quarter	about $47.00
(e) LP gas	$90.00
(f) Food	about $3,000.00
	------------------
	$3,592.00
	or $1,197.00	per head.

(2) Madam Chan's monthly expenses

(a) Clothing	about $500.00
(b) Visits to herbalist at $80/90 per visit for rheumatism	about $450.00
	$950.00

(3) Daughter's monthly expenses

(a) Travel	$300.00
(b) Pocket money	$300.00
(c) Books and uniform	$30.00
	$630.00

22. Additionally, Madam Chan sent $500.00 per month to her mother in China who unfortunately died in January 1993 when such payments obviously stopped.

23. I am satisfied from Madam Chan's evidence, which was not challenged, that the deceased was a dutiful husband, father and son-in-law. He enjoyed good health. He smoked a packet of cigarettes each day. He gambled a few dollars a week on horses, but otherwise his habits were frugal. He occasionally had a beer with his supper. Madam Chan believed that the deceased had savings. Madam Chan had savings accounts but she agreed that all money deposited therein emanated from the deceased.

24. At present, Madam Chan estimates her monthly expenses are about $7,000.00 as follows:-

(1) Monthly household expenses

(a) Rent	$1900.00
(b) Telephone at $189 per quarter	$63.00
(c) Food ($50 x 30)	$1500.00
(d) Sundry expenses	$500.00
	-------------
	$3,963.00

(2) Madam Chan's monthly expenses

(a) Medical expenses	$200.00
(b) Lunch ($20 x 30)	$600.00
(c) Clothing	$500.00
	-------------
	$1,300.00

(3) My daughter's monthly expenses

(a) Lunch ($20 x 22)	$440.00
(b) Tuition	$520.00
(c) Travelling expenses ($5 x 22)	$110.00
(d) Stationery about $2,103.00 per annum	$175.00
(e) Piano tuition fees	$600.00
	-------------
	$1,845.00

25. Madam Chan also told me that the total funeral expenses were $50,000.00 although she has only been able to provide receipts to the value of $22,880.00. She agreed that the figure of $50,000.00 included one meal for the relatives and transport just to the crematorium.

Can there be a claim in respect of the deceased's mother-in-law?

26. There is a claim made on behalf of the mother in law of the deceased who did not live with the widow and plaintiff but lived in China and whom was sent $500 per month until her death in January 1993.

27. The simple issue is whether she can come within the definition of "dependent" as defined in s 2(1) of the Fatal Accidents Ordinance. The only possible subsection is (d) which includes as a dependent "any parent or other ascendant of the deceased". In my judgment this refers to parents, grand parents or great grandparents of the deceased. A mother in law, however close to the deceased, cannot be termed an ascendant. Had she been living with the deceased prior to his death she would have come within s 2(1)(c) of the Ordinance. There can, therefore, be no claim on behalf of the mother in law.

What is the correct figure for bereavement?

28. It is common ground that the statutory figure for bereavement was $40,000.00 at the date of death, but was $70,000 at the date of trial. The latter figure was introduced by L.N. 205 of 1991 effective as of 22nd May 1991.

29. Both counsel were inclined to accept the correctness of the decision of Ryan J. in Chow Oi Yee v. Chow Kan To HCA No. A2287 of 1991, judgment delivered 26th November 1992. This judgment has been reported only at HKLJ (1993) at pp. 142/3. However, both counsel agreed that I was free not to follow this decision if I thought it was incorrect.

30. Ryan J. took the view that the relevant date was the date of trial and he stated that he should treat the matter as if it were analogous to an increase introduced to give effect to inflationary pressure. From time to time, the damages payable for pain and suffering and loss of amenity are increased to take into account the incidence of inflation and the new figures are applied to cases determined after the increase without reference to the prevailing figure at the date of injury.

31. However, under the Fatal Accidents Ordinance, I am dealing with an arbitrary and statutory figure for bereavement. The effect of this legislation is to ensure that the persons covered by section 4 of the Ordinance are entitled to a specific statutory sum for bereavement. Tortfeasors causing death are liable to pay that specific statutory sum without any further proof.

32. I find great difficulty in seeing that any date other than the date of the accident can be appropriate for ascertaining what sum is due under section 4. I am fortified in this conclusion by a decision of the Court of Appeal which does not, unfortunately, appear to have been cited to Ryan J.

33. In Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd. (Civil Appeal 36 of 88) Hunter J.A. made it clear that there is a "presumption against giving retrospective effect to legislation" and this prevails unless the amending legislation gives an indication of a contrary legislative intent. That case concerned new minimal figures under the Employees Compensation Ordinance Cap. 282. The legislation introducing the increases was silent on retrospectivity and thus the normal rule applied. I am satisfied that the situation in that case is analogous to the present case. On the date of the death the defendant's right to claim a statutory sum for bereavement and the 1st and 3rd Defendants' obligations to make such payment under the Ordinance accrued. [See also Yew Bon Tew v. Kenderman Bas Mara [1993] 1 A.C. 553 and S 23 of Cap. 1]

34. In the case before him, Ryan J. stated that "if the legislature had wished the amendment to apply only to cases which arose after the passing of the amendment, it would have said so". In my judgment, the test is really the reverse. If the legislature had intended that a new figure applied to death occurring before the increase, it would, and should, have specifically so stated. I can find absolutely nothing in the wording of the section or amended section which lends any support to the argument that, contrary to the usual rule, this amendment was to have retrospective effect.

35. I propose to follow what I consider to be the basic principles as well as the strong indications given in Hunter J.A.'s judgment in the above- cited case. I decline therefore most respectfully to follow Ryan J.'s reasoning and accordingly, I award $40,000.00 for bereavement.

What were the deceased's earnings at time of death?

36. I am satisfied that the deceased was earning $410.00 per day at the date of his death. I feel I can safely accept Madam Chan's evidence on this point. I am also satisfied that the deceased was a steel fixing worker although it may be that at times, when no such work was available, he might have done steel binding work. It is interesting to note that the deceased earned more than Mr. Szeto Kwong did. He was a steelbender and he got about $300.00 per day. It is also interesting to note that D3 in his statement describes the deceased as a bar fixing worker. I appreciate that the deceased did not work at the site each day, but only when required. However, I am satisfied that when not working at this site, he was working elsewhere and this is confirmed by Madam Chan's evidence.

37. The figure of $410.00 per day is not far off the figure of $460.00 per day for steelbenders in the table from Census and Statistics at p. 96 in the bundle.

38. I think on average, taking into account rest days and inclement weather, the deceased would have worked about 26 days per month.

39. I also accept that on average each month the deceased earned an extra $2,600.00 by introducing an average of 10 workers per day at a commission of $10.00 per workers. The document introduced by D1, known as Exh. D1, strongly supports the introduction of an average of 10 workers a day to sites and it also, incidentally, confirms the earnings of the deceased as stated by Madam Chan.

40. The figures are therefore as follows:

$410 x 26 = $10,660.00 being the basic salary as a bar fixing worker.

$10 x 10 x 26 = $2,600.00 for introducing workers.

Total $10,660 + $2,600 = $13.260.00

What would the deceased have been earning now?

41. In June 1989, the Census and Statistics' figures show a steelbender was earning $460 odd per day. By September 1993 (the latest figures available), this had increased to $788.00 per day. This is an increase of 71%.

42. Mr. Lo, for the plaintiff, invites me to apply a 71% increase to the figure I find as earnings at the date of death. If I do that, then I come to a figure of $22,674.00. I accept that this is a substantial sum, but it appears to be borne out by the figures to which reference has been made. I have no evidence before me that the commission of $10.00 per day has increased since 1989. I have no reason to believe that this figure has not reflected the inflationary pressures to which we all have been subjected to in Hong Kong. I am therefore prepared to accept an increase of 71% over the 4 1/2-year period given the high rate of inflation just referred to. Mr. Lo's suggested figures for the defendants were unreasonably low and unrealistic.

43. A 71% increase between 1989 and 1993 increases the figure of $13,260.00 per month to one of $22,675.00.

44. The median earnings during the pre-trial period are thus ($13,260 + $22,675)÷2 = $17,967.00.

45. The pre-trial position is thus as follows :

(a) Widow

$1,197 (i.e. 1/3 of household expenses of $3,592) + $950 = $2,147.00 (which represents 16.19% of $13,260)

(b) Daughter

$1,197 + $630 = $1,827.00 (= 13.77% of $13,260) The median increase for the pre-trial period is thus 71%÷2 = 35.5%

(a) Pre-trial - 53.5 months from accident

(1) Widow $13,260 x 135.5% x 16.19% x 53.5 = $155,626.00 (2) Daughter $13,260 x 135.5% x 13.77% x 53.5 = $132,364.00

(b) Post-trial

(1) Widow : multiplier 10 (see below) $22,675 x 16.19% x 66.5 (balance of 10 year multiplier) = $244,127.00.

(2) Daughter : multiplier 10 $22,675 x 13.71% x 66.5 = $206,731.00

Reasons for multiplier

46. At the date of death, the deceased was aged 45 and in good health. The plaintiff asks for a multiplier of 10 for the deceased, but the defendant seeks a multiplier of 8. I award a multiplier of 10 as suggested by the plaintiff.

47. Although Mr. Lo for the plaintiff suggested a multiplier of 8 for the widow, I can see no basis for taking a different multiplier for the widow to that of the deceased. They were about the same age. The multiplier runs in fatal accident cases from the date of death and that is why I have taken 53.5 months pre-trial and the balance of the 10 year period is 66.5 months.

48. The daughter was aged 9 at the date of death and a multiplier of 10 is also sought. I see no reason to dissent from a multiplier of 10.

Loss of accumulation of wealth

49. Section 20(2)(b)(iii) of LARCO provides as follow :-

"20. (1) Subject to the provisions of this section, on the death of any person after 26 October 1951, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.

(1A) The right of a person to claim under section 4 of the Fatal Accidents Ordinance (for bereavement) or under section 20C(1) of this Ordinance (for loss of society) shall not survive for the benefit of his estate on his death. (Added, 40 of 1986, s. 2)

(2) 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-

(a) shall not include any exemplary damages;

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

(i) be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;

(ii) not include any damages in respect of loss of ability to render services after his death;

(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" (Replaced, 40 of 1986, s. 2) [my emphasis]

50. It is clear from this sub-section that an award of damages based on an accumulation of wealth which would have existed as at the date of the likely natural death of the deceased can be made provided that the court is satisfied that some would have existed. I can find nothing in this section that provides for the award of a conventional or notional sum which I note is frequently awarded in some of the reported cases.

51. It seems plain to me that what the court has to consider is whether, at the date of death by natural causes, there would have been an accumulation of wealth, the realization of which the tortious death has prevented. The mere fact that some savings can be shown at the date of the tortious death is not tantamount to saying that such savings would have been in existence at the date of the natural death. It seems clear to me that whereas a man in this sort of work can make some savings, these are inevitably earmarked for the period after which he has retired and during which there is no meaningful old age pension or other support. Further, savings that can be identified at the date of the tortious death may well be spent on a variety of matters during the normal working life.

52. It also seems clear to me that the amendments introduced by section 20 of LARCO to counter the "lost years" claim were enacted to prevent a windfall accruing to estates which could not be justified on the evidence. In fact, section 20 itself exhorts the court to ensure that there is no over compensation to the estate.

53. I have noted several cases where, in the absence of any real evidence, the court has taken a notional figure of 10% of earnings throughout the rest of the working life to represent accumulated wealth under this sub-section. Having found no warrant for this approach in the Ordinance itself, I must look carefully at the reasoning which is said to support such a judicial approach.

54. In this case, counsel provided me with a bundle of authorities, but gave me no assistance at all in analyzing this point. Mr. Lo for the plaintiff merely relied on the notional 10% approach and Mr. Lo for the defendants merely pointed out the lack of any evidence of savings.

55. I have been through the bundle of authorities and there appears to me to be four relevant decisions, three by masters and one by Nazareth J. (as he then was). The correct approach is to analyse them chronologically.

56. The first in time is Wai Kang Kwan, the Administrator of the estate of Wai Sau Lai, deceased v. Wong Wing Kwong and Link Charm Trading Co. Ltd. [1989] No. A1803, date of judgment by Master Jones. 2nd October 1989. In this case, the deceased was aged 17 at the date of death on 25th July 1987. She had been employed for only 1 1/2 months as an assembler at the factory. She only recently finished her Form V examination and left school. At page 7 of the judgment, the learned Master turned to the claim relating to the accumulation of wealth under section 20(2)(b)(iii) above referred to. Counsel for the plaintiff urged upon the Master that such an award should be made on the assumption that the deceased would have started accumulating wealth after her likely marriage in her middle 20s. Counsel for the defendant on the other hand urged the lack of an established saving pattern and the speculative nature of such an award. The learned Master referred to the terms of the section and at page 8, said this :-

"The speculative nature of this approach is compound. It ignores the possibility of children making a full working life difficult or impossible. It ignores the possibility that the deceased may marry a poor man and have no savings at all. It ignores the possibility that she may marry a rich man and have no need to work. Finally, as defence counsel points out, it ignores the lack of an established saving pattern to support an assumption award used to be called the free balance."

57. The Master went on to make clear that the court must not speculate beyond such future probabilities as may reasonably be inferred from the evidence and he concluded that "the assumptions I am asked to make by plaintiff's counsel have little foundation in reality and I decline to make an award for accumulation of wealth".

58. I now come to the judgment of Nazareth J. in Chan Yuk Ying & Chan Yuk Bing Co-administratrixes for the estate of Lui Cheuk Kwong v. Chan Cheung Wan 1988 No. 7911, date of judgment 5th June 1990. The learned judge turns to the question of loss of wealth at page 16 of the judgment. He said "The defendant left no savings to speak of.". (I believe this is a misprint for the "deceased"). He did have a savings account which had $973.49 in credit at the time of death. The learned judge concluded that the savings account book did not manifest a pattern of savings rather the account seems to have been used as a current account. Counsel for the defendant submitted to Nazareth J. that absent a pattern of savings, no award under this head of loss should be made. Nazareth J. then went on to say this :-

"While I accept that it is upon a pattern of savings that a loss of wealth award might ordinarily be made, in my view it cannot be right to deny an award in the absence of such a pattern where the evidence establishes a probability that savings would have been made, if such savings can be assessed on some other, possibly even minimal basis. It is clear from the evidence that the deceased's income at the time of this death was so low, even when combined with his wife's income, that no savings could be made. But that situation clearly would have dramatically changed with the sharp increase in income in his occupation ... the deceased would very rapidly have moved into a position in which he could have effected substantial savings. And if he was in a position to do so, I have no doubt given his character, that he would have made substantial savings."

59. The first comment I have upon this paragraph is that there is a difference between building up savings during one's life time and those savings still being in existence at the date when death from natural causes occurs. People often do save during the course of their working life to provide for their retirement. As the population grows older, and people live longer, it is more likely than not, in my view, that any savings accumulated during the working life of people in the position of the deceased in the case before Nazareth J. and the case before me would have been used up by the time of natural death.

60. Nazareth J. then went on to say this :-

"Having regard to his own sober and frugal habits and indeed, the natural thrift of the inhabitants of Hong Kong (that was commented upon by Sir Denys Roberts C.J. in Wong Sai Chuen v. Tam Mei-chun (1983) HKLR 331 at 339) I have no difficulty in coming to the conclusion that the deceased would certainly have begun to make savings as soon as he was able to do so and that, in my view, would not have been very long after the time of his death, given the surge of remuneration in his occupation.

In the past, in a not unrelated context, the somewhat arbitrary figure of 10% of net earnings has on occasion been adopted as a person's notional savings (e.g. see Wong Sai Chuen p. 339B). In the particular circumstances disclosed by the evidence in the present case I have no doubt the deceased could have been expected soon to have been able to save at least 10% of his earnings and very rapidly substantially more."

61. I have, of course, considered the observations of Nazareth J. very carefully, but I must confess I find it difficult to see how they can be said to be carrying out the intention behind section 20(2)(b)(iii). What the court has to look at is whether or not at the date of death by natural causes the deceased would have achieved an accumulation of wealth. That means that he would have saved it during his working life, not spent it during his retirement and died possessed of it. In those circumstances, the estate is compensated for the tortious act which prevented this from happening. Of course. in cases where people do earn considerably more than they spend. they can enter into savings' plans or provide for pension arrangements which generally ensure that their retirement is otherwise catered for. In those circumstances, there may well be scope for concluding, if the evidence so supports, a finding that at the date of natural death, there would have been an accumulation of wealth. However, I find it very difficult indeed to see how this can be said to apply to a deceased such as that being considered by Nazareth J. or by myself.

62. I am, therefore, placed in the unfortunate position of not being able to agree with the approach of Nazareth J., and I therefore do not propose to follow his reasoning. I propose to look at the evidence in the case before me and see whether on that evidence it is likely that there would have been an accumulation of wealth as at the date of natural death. If I cannot find such evidence, then I decline to award a conventional or notional sum of 10% of earnings which in my judgment is completely unwarranted by the terms of the section which I have to apply.

63. The next case is Lee Ching & another v. Kit Man [1989] No. A1540, a decision of Master Beeson delivered on 27th June 1990. She refers in her judgment to the decision of Master Jones above-referred to, but I do not believe she had the decision of Nazareth J. (which was given only a few days previously) before her when she was delivering her judgment. Having referred to the judgment of Master Jones, Master Beeson emphasized that it would be inappropriate to make an award under this head that was purely speculative. However, she went on to conclude that there was sufficient information before her to make an award under this head. She pointed out that the deceased was a man of mature years entering the peakm years of his earning capacity. There was no indication that the deceased was a spendthrift or a wastrel. She pointed out that in the next few years, both sons would become self-supporting and the deceased would have had a surplus income. She came to the view that it was probable that the deceased would endeavour to save an amount roughly equivalent to what he formerly spent on his dependents. The learned Master said this :-

"Accepting, as I did, that deceased's future earnings would be in a fairly high level I consider that it was more likely than not that deceased would endeavour to make provision for his retirement by accumulating savings. He was unlikely to have further children nor was there any indication on the evidence that the elder son was likely to proceed further with his education to tertiary level. He did not contribute to any pension scheme nor did the evidence show that he had his wherewithal earlier to make such provision." (sic)

64. Here again, the court is considering whether on the evidence it can be satisfied that provision for retirement would be made by accumulating savings. However, what the learned master did not apply her mind to was whether those accumulated savings for the purposes of retirement would have remained wholly or partly intact at the date of natural death. It seems to me far more likely that such accumulated savings made by manual workers during their life time would be spent on making provision for themselves and their spouses during their retirement. As I have already said the years of retirement are getting longer, and if inflation goes on as it is at the present the elderly will find it very difficult to make ends meet because they do not enjoy the corresponding increase in wages which are designed to take into account the question of inflation. So in this case, it seems to me, that the Master is, as was Nazareth J., looking at the wrong moment in time. It is relevant to consider what savings would have accumulated by the time of retirement, but what is essential is to consider whether that accumulated wealth would have been in existence at the date of death by natural causes.

65. The final case is Cheng Yuk Shiu v. The estate of Ma Wai Hoi & another [1989] No. A4886, judgment delivered by Master Patrick Chan (as he then was) on 24th October 1990. The learned Master referred to the amendment of the Ordinance and stated correctly that he was concerned with the loss of accumulation of wealth. He then referred to the recent decision of Nazareth J., above-referred to, and he respectfully agreed with the comments made by the learned judge. He then went on to say this :-

"In the present case, I note that the deceased had only a very small saving at the time of his death. This is, as Miss Liu submitted, because of his previously low and irregular income from the odd jobs. If he was able to have a sharp increase of income after the completion of his apprenticeship, it is likely that he would start saving more. On the other hand, he was single and had no steady girlfriend, it is only natural that as he could earn more, he would spend more."

66. The learned Master then adopted the notional figure of 10% as his savings. The same comments can be made to this approach as I have made in relation to the other judgments. Additionally, it is only fair to point out that even if a worker experiences a sharp increase in income, it is due substantially, as in the case before me, to the effects of inflation. I must not ignore the fact that inflation likewise affects the expenditure of the family it under consideration. In my judgment, Master Patrick Chan was involving himself in substantial speculation because the deceased was 19 and was still an apprentice. In my judgment, on the facts before the learned Master, it could not be said that any pattern of life had been established and the court was speculating in a manner which, I would have thought, was quite impermissible.

67. I am dealing with a man aged 45 who had been in regular employment for a number of years and on the evidence was a frugal and caring husband and father. In those circumstances, I have looked at the evidence with some care to see whether any pattern of savings can be established. If I were satisfied on the evidence that a pattern of savings could be established, and if I were satisfied further that it was more likely than not that part of those savings would have been in existence at the date of natural death, I would have been prepared to make an award as best I can under this section. However, when I turn to the evidence the position is quite hopeless. The deceased had a savings account with the Hong Kong Bank at Kowloon City Road. Photocopy pages of this book have been placed before me in the bundle starting at page 113. It opens on 14th July 1981 with a balance of $1,757. There are relatively small amounts paid in and relatively small amounts withdrawn. The account has never had more than $4,275 in credit and the last entry is 1st August 1984 long before the death.

68. At p. 116, there is another savings book in the name of the deceased which this time starts with an opening balance of $10 on 18th January 1986 and the last entry was on 14th January 1989 which shows a credit balance of $61. The highest credit standing to this account was $1,276.

69. Starting at p. 120 is a third savings book of the deceased. The first page I have been shown shows a balance of $3,029 on 17th August 1987 and the last entry before death was on 25th January 1989 which shows a credit balance of $91. It appears that most of the withdrawals were made by use of an ETC card.

70. Starting at page 122 is a bank statement in the name of the widow which she has confirmed was funded by payments made to her by the deceased. The first page I have is the 5th September 1988 which shows a balance of some $13,000. The last entry was on 5th June 1989, shortly before the accident, which shows a credit balance of $9. In fact, this account shows that during a 9-month period, some $127,276 was deposited and this equates to about $14,000 per month which is not far off the sum which the deceased was earning prior to his death. However, the fact remains that all the money paid in was taken out and there was virtually a nil balance at the date of death.

71. Starting at p. 125 is another savings account of the widow which starts after the death and therefore has no relevance to this issue. In fact it was opened on 18th September 1989 with a deposit of $10. On the same day, there was a time deposit of $62,433 which may well have been connected with payments made to her by reason of the death. Unfortunately, there is no evidence about this because no questions were put to the widow about the whole issue of savings save to establish that any money in her account came from the deceased.

72. Finally, on p. 130 is another account in the name of the widow which appears to have been opened on 23rd December 1988 with a credit of $100 and as on the date of death contained $3,350.

73. It therefore appears clear on the evidence in this case that no pattern of savings can be established. As at the date of death, virtually all the money that had been paid in to the savings accounts, whether in the name of the deceased or the name of the widow, had been withdrawn. I have no evidence as to where this money went. Nothing was said about the purchase of investments, gold, jewellery, etc. I therefore can only conclude that this money was paid into these accounts and was taken out for the living expenses of this family as and when required. Far from establishing a pattern of savings up until the time of his death, there appears to be no such pattern at all. It would, in my judgment, be absurd for me to go on to conclude that he would, after the age of 45, have established a pattern of savings and further conclude that those savings would not have been used up during his retirement.

74. I must therefore conclude on the evidence before me that the plaintiff has failed to establish a claim under section 20 of LARCO. Further, I am not prepared to adopt the notional approach commended by Nazareth, J. and followed by the Masters. I do not think that this approach is warranted under the terms of the legislation which I have to apply. There will therefore be no award under the head of accumulation of wealth.

Funeral expenses

75. The plaintiff tells me that she spent $50,000.00 on funeral expenses, but is only able to produce receipts limited to $22,900.50. The defendant is prepared to accept this figure. The plaintiff wishes an award of $50,000.00. I have no doubt that the widow was telling me the truth when she said that she spent approximately $50,000.00 on the funeral. However, I am also satisfied that included in that sum were items which it would not be correct to award against these defendants. In the circumstances. doing the best I can, bearing in mind the lack of documentation, I propose to award a sum of $30.000.00 under this head.

Miscellaneous points

76. At the beginning of the trial, Mr. Lo for the plaintiff submitted that I should receive into evidence under Order 25 rule 8(dd) the certified copies of the notes of inquest signed by the coroner on 18th October 1989 and certified as a true copy by the clerk to the coroner on 5th November 1992. This course was objected to by Mr. Lo for the defendants and he based himself on a decision of Deputy Judge Caird, delivered on 25th February 1985 in the case of Lam Fung v. Shing Chong Construction Co. Ltd. 1893 of 1982. The issue before Judge Caird was what the words "the record of any proceedings in any court or tribunal shall be receivable in evidence ..."meant. Deputy Judge Caird in this ruling pointed out that para. (dd) does not set out the purpose for which the record should be receivable in evidence. The question is whether the record can be used to prove the truth of the facts contained therein or whether the rule only means that the notes of the inquest do not have to be formally proved, but can only be used for the purposes of contradicting evidence given in the normal way at trial. I said that I would rule on this point in this judgment. However, as matters turned out, it was not necessary for me to consider anything contained in the notes of the inquest. I do not therefore think it appropriate to decide the use to which this document can be put in the light of the fact that neither I nor counsel have, in the end, made any use of this document. Anything I had to say would be obiter and I think the point will have to remain over for another day.

77. At the outset of the trial, I was asked to admit the statement of Mr. Szeto under Order 38 rule 29. I declined to do that because Mr. Szeto was available and, in fact, he was called and gave evidence which I found helpful and reliable.

78. There was also an application under the same rule to receive in evidence the statement of D3 made to the police on 15th June 1989. I granted this application but I have placed little reliance upon the statement because I prefer to rely upon the evidence of the live witnesses, namely, Mr. Szeto and Mr. Chick.

79. There were several issues in this case which were not ventilated at all especially in relation to the claim for quantum. I did not think it appropriate myself to open up these issues and I therefore had to decide all issues relating to quantum solely on the evidence placed before me. In relation to liability, the record will show that I asked more questions than I normally would in a case such as this. This was because at times I found it difficult to follow what was being contended for and I thought it only right in the interest of justice to clarify these issues so that I understood the parties' respective cases.

Conclusion

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

1. Pre-trial

(a) Widow -	$155,626
(b) Daughter -	$132,364

2. Post-trial

(a) Widow -	$244,127
(b) Daughter	$206.731

Contribution

81. D1, as main contractor, seeks an order of contribution against D3 as employer. Mr. Lo for D1 said that the bulk of liability should rest upon D3 because he arranged for the food to come to the 19th floor. Mr. Lo suggested that, if I found liability then some of 70 or 80% should be borne by D3.

82. I do not believe it would be right to apportion liability in this way. I accept that D3 as employer was in breach of his duties to the deceased, particularly in relation to the placing of the food and refreshments. However, there was a substantial breach by D1 of his duties under the Occupiers Liability Act. If this lift shaft had been properly boarded and/or roped off and/or proper warnings had been given to workers including the deceased, it is unlikely that whatever D3 did in relation to the placing of food would not have had these dire consequences. I believe that the occupier of a building site, which is an inherently dangerous place, has to bear a substantial portion of the blame. After all, it is within the power of D1 to ensure that accidents such as this do not happen. It was D1 who failed to take any elementary precautionary steps for the protection of those working on site including the deceased. D1 had control of the site. D1 had a safety supervisor who visited the site each day. That safety supervisor singularly failed in his duty to ensure that the site was safe. It seems to me that the person who has it within his power to prevent accidents such as this, must bear the primary responsibility. Although I accept that immediate control of the deceased rested with D3, nevertheless D3 was one of several small sub-contractors who must take their lead on safety from the main contractor as occupier of the site.

83. Doing the best I can, on the evidence before me, and in the absence of any live evidence from the 3rd defendant himself, I think the correct apportionment is 70% to be borne by D1 and 30% by D3.

Interest

84. It is agreed that there will be interest at the rate of 4.8% on all pre-trial losses.

Costs

85. I propose to make a costs order nisi in favour of the plaintiff against both D1 and D3. There will be taxation of the plaintiff's own costs pursuant to the Legal Aid Ordinance and Regulations. The claim against D2 will be dismissed with such additional costs as may be relevant.