CHENG CHING MUK v. WAH NAM TRAVEL SERVICE LTD.

HCPI65/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

ACTION NO. PI-65 OF 1997

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Assessment of Damages

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1. This action is brought by the Plaintiff on behalf of the dependants and estate of the Deceased, Cheng Fung Ting, under the provisions in the Fatal Accidents Ordinance, Cap 22 ("FAO") and the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 ("LARCO"). The Plaintiff is the father and intended Administrator of the Deceased.

2. On 10th February 1994, the Deceased joined a package tour to the Mainland. The tour was organised and operated by the Defendant. On 10th February 1994, when the Deceased was travelling on board a van with the tour group, the said van lost control during an overtaking and collided into a wall. As a result of the collision, the Deceased was thrown out of the said van and sustained serious injuries. She died on the same day.

3. By a Writ of Summons filed on 21st January 1997, the Plaintiff, as the intended Personal Representative of the Deceased, claims against the Defendant for damages for breach of contract. The Defendant admitted liability and Interlocutory Judgment was entered on 27th July 1998 against the Defendant with damages to be assessed.

4. All along the Defendant was represented by a firm of solicitors in these proceedings. About 2 weeks before the hearing, the Defendant filed a Notice to Act in person. Upon application by the Defendant, the Court granted leave to a Director of the Defendant to represent the Defendant at the assessment hearing.

5. The Deceased was aged 34 at the time of her death. She was unmarried and was the eldest child of the family. Prior to her death, she worked as a sales promoter earning a basic salary of $5,720 a month plus commission and bonus.

Loss of Dependency Claim under FAO

6. The Plaintiff gave evidence that prior to the accident, the Deceased was residing with the following family members under the same household:-

a) the Plaintiff, the Deceased's father, aged 62 and retired;

b) Cheng Chin Ching, Deceased's younger brother, aged 29, a casual worker;

c) Cheng Chui Mei, ("Chui Mei") Deceased's younger sister, aged 28, an accounting supervisor;

d) Cheng Chui Kuen Tracy ("Chui Kuen"), Deceased's younger sister, aged 20, then a student and started working since about April 1995;

e) Cheng Chin Mong ("Chin Mong"), Deceased's younger brother, aged 19, then a student, started working since about October 1995;

f) Cheng Chin Man, ("Chin Man") Deceased's younger brother, aged 16, then a student, now attending a 3-year degree course at the Hong Kong Academy for Performing Arts.

7. The Deceased has another younger sister, Cheng Chui Miu ("Chui Miu"). She was married and was living apart. The Deceased mother pre-deceased the Deceased in September, 1992.

8. According to the Answer to the Revised Schedule of Damages filed by the Defendant on 13th August 1998, the Defendant did not dispute that the Plaintiff, Chui Kuen, Chin Mong and Chin Man were partial dependants of the Deceased. What is in dispute is their respectives amount of dependency. On the evidence, I accept that they were partial dependants of the Deceased.

According to the Plaintiff, the Deceased earned about $7,000 to $8,000 a month. On the evidence, and as supported by documentary evidence such as the Employer's Return and the Deceased's Savings Passbook, I accept that prior to her death, the average monthly income of the Deceased was $7,934.38. In the Employer's Return of Remuneration and Pension for the year 1993/1994, the total earnings of the Deceased from 1st April 1993 to 13th February 1994 (a period of about 10.5 months) amounted to $83,311. This comprised of her basic income, leave pay, commission and bonus (P.35 of Bundle of Agreed Documents). This worked out to be $7,934.38 per month ($83,311÷10.5).

9. Counsel for the Plaintiff submitted that between 1992 to 1996, the colleagues of the Deceased received a general salary increase ranging from 12% to 15% p.a. Counsel therefore suggested that the Court should adopt a median figure of 13.5% as the notional annual increase of the Deceased's income.

10. It is not disputed that the Deceased received a 10% annual increase in her basic income in the year 1993/1994. However, the Defendant contended that the figure of 13.5% was too high as it had failed to take into account of the recent economic downturn; the increase in unemployment rate and the reduction of wages among the employees in Hong Kong.

11. In the case of Lam Po Yuk and Another v Mercury Shipping Co. Ltd. (in Liquidation) [1997] 3 HKC 655, the Defendant company had been wound up and it was impossible to know how much the deceased would have earned but for the accident. Master Cannon in that case considered that it was reasonable to adopt a 10% annual increase in the deceased's earning for the period since death, which was approximately in line with the rate of inflation. I note that this case was heard in November 1997 and that two other cases were cited to Master Cannon in support of this 10% figure namely Kwan Wing Sang v Chi Chiu Engineering Co. Ltd. digested in [1997] HKLRD H49 and Yau Wong Fui v Winning Fire Engineering Ltd. digested in [1997] HKLRD H48. Having considered the above cases and the rate of payroll inflation set out in Leung On v Chan Pui Ki [1996] 2 HKC 565, I am of the view that the suggested figure of 13.5% was on the high side. I do not accept such figure. I consider that a 10% annual increase would be reasonable bearing in mind the rate of inflation since the death of the Deceased in early 1994. On the same basis, I adopt a 10% annual increase in respect of the monthly contribution made by the Deceased to the household expenses.

12. According to the Plaintiff, the Deceased contributed $4,000 to the household expenses, Chui Mei contributed another $6,000 making a total contribution of $10,000 ($4,000 + $6,000). Chui Miu, who was married and living apart, used to pay the Plaintiff $3,000 as pocket money each month. This $3,000 was used by the Plaintiff to pay for his Chinese tea, lunch and on his mahjong game and horse-racing. Counsel for the Plaintiff submitted that this $3,000 should be included in computing the partial dependency of the Plaintiff on the Decesaed. Counsel argued that the contributions by the 3 daughters namely the Deceased ($4,000), Chui Mei ($6,000) & Chui Miu ($3,000) should be treated as a total contribution for the use by the whole family. I do not agree. On the evidence, this $3,000 was paid by Chui Miu to the Plaintiff as his pocket money and was solely used by the Plaintiff. I do not think it is appropriate to treat this whole sum of $3,000 as part of the Plaintiff's dependency on the Deceased. Nevertheless, I am prepared to allow one third of this $3,000 (i.e. $1,000) to be treated as part of the Plaintiff's partial dependency on the Deceased. This is because if Chui Miu were to cease or reduce this payment of $3,000 to the Plaintiff, the burden and responsibility of maintaining the Plaintiff for his personal expenses would be shifted to and taken up by the Deceased and/or Chui Mei.

13. As to the monthly contribution of the Deceased, the Defendant challenged that the Deceased was able to contribute $4,000 to the household expenses each month. The Defendant argued that from the Savings Passbook of the Deceased, it showed that she earned and received about $6,000 odd per month (i.e. basic salary plus commission) and that at the time of her death, she had an outstanding debt of $5,200 odd in her credit card account with Hong Kong Bank. It was therefore argued that the Deceased could not have contributed $4,000 to the household expenses. The Defendant further submitted that if not for the accident, the Deceased would have married and might not continue to contribute the same amount, if not less, to the household expenses.

14. The Plaintiff disagreed and gave evidence that the Deceased was a frugal person. She was a filial and responsible daughter. She cared and showed concern for her younger sister and brothers.. He said that the Deceased would continue to support him and the younger sister and brothers even if she were married.

15. The Plaintiff impressed me as a straight forward person and an honest witness. I have no reason to doubt his evidence. Indeed, given the kind of person that the Deceased was and as described by the Plaintiff and as the eldest child of the family, I accept that the Deceased had made a regular contribution of $4,000 per month to the household expenses. Furthermore, I believe it would be more probable than not that if the Deceased were to get married, she would have continued to support the Plaintiff and the family. There is indeed no evidence to suggest that prior to the accident the Deceased was in contemplation of a marriage. In the case of Wong Mee Wan the administrator of the estate of Ho Shui Yee v Kwan Kin Travel Services Ltd. and 2 others (High Court Action No.A4201 of 1989 (unreported), Mayo J. (as he then was) had made the following observation on this matter between future marriage and contributions to the family:-

'There is no reason to suppose that Miss Ho (the deceased) would have married a poor man and having regard to the fact that the parents needs would continue notwithstanding any such contingency, it is probable that financial contributions would have continued after her marriage. It is also likely that she would continue working after marriage as most girls do now.'(words in italic added)

I am of the view that the above observation by Mayo J. can equally be said of the Deceased in the present case. On the evidence, I accept that the Deceased and Chui Mei respectively contributed $4,000 and $6,000 a month to the household expenses. Adopting the basis of 10% annual increase for the Deceased's contribution; from the date of accident up to the date of assessment on 26th October 1998, (a period of about 56.5 months) the Deceased's contribution would have been increased by 47% to $5,880 ($4,000 x 147%), the median would be $4,940 ($4,000 + $5880/2).

16. According to the Plaintiff, prior to the accident, the total household expenses for 7 family members (including the Deceased) amounted to $14,955 per month. This comprised of the following:-

a)	Rent	$2,485
b)	Public Utility	$600
c)	Food and household expenses (i.e. including the said $3,000 paid by Chui Mui to the Plaintiff)	$9,000
d)	School fees/miscellaneous expenses for Chin Mong	$1,455
e)	School fees/miscellaneous expenses for Chin Man	$1,415
		$14,955	per month

However, deducting the said $3,000 (i.e. paid by Chui Miu to the Plaintiff) from the alleged total household expenses of $14,955, it would give a figure of $11,955 ($14,955 - $3,000). This sum of $11,955 is more than the total monthly contribution of $10,000 made by the Deceased and Chui Mei. Indeed, there was no receipt nor documentary evidence to support all these expenses except in the Savings Passbook of the Deceased, there was a monthly auto-payment of $2,485 (see P.40 to 50 of the Bundle of Agreed documents) which appears to be rental payment. The Plaintiff explained in his evidence that the monthly sum of $6,000 ($9,000 - $3,000) was used to pay for food, fruits and miscellaneous expenses. This worked out to be $200 per day or $28.57 per person per day ($200÷7). Having considered that the family household consisted of 7 persons, I am prepared to accept that the household expenses of $2,485 for rent; $600 for utility and $6,000 for food and miscellaneous expenses as reasonable. As such, the share of the household expenses per person would be $1,297.90 [($2,485 + $600 + $6,000)/7] say $1,300.

17. As to the school fees and related expenses of Chin Mong and Chin Man amounting to $1,455 and $1,415 respectively, again there was no receipt produced to support these expenses nor evidence adduced to explain how these two figures were arrived at. I appreciate that it is not always possible to make precise calculation for the exact amount of household expenses each month as it may slightly vary from month to month. But given a variation of $1,955 between the alleged total household expenses and the total monthly contribution ($14,955 - $3,000 - $10,000 = $1,955), I am not prepared to accept, without further proof, the alleged amount of $1,455 and $1,415 as claimed (total $2,870). I am only prepared to allow a sum of $2,000 as the school fees and related expenses for Chin Mong and Chin Man (i.e. at $1,000 each).

18. On the basis of the above, the amount of dependency for each of the 4 dependants would be as follows:-

a)	Cheng Ching Muk, the Deceased's father and the Plaintiff herein	$1,300 + $1,000	= $2300
b)	Chui Kuen		$1,300
c)	Chin Mong	($1,300 + $1,000)	= $2,300
d)	Chin Man	($1,300 + $1,000)	= $2,300
			$8,200

19. The total amount of dependency of the Plaintiff, Chui Kuen, Chin Mong and Chin Man would be $8,200, including the Deceased's share of the household expenses of $1,300, it would give a total sum of $9,500.

20. The dependency ratio would be:-

a)	The Plaintiff	2,300/9,500 = 24%
b)	Chui Kuen	1,300/9,500 = 14%
c)	Chin Mong	2,300/9,500 = 24%
d)	Chin Man	2,300/9,500 = 24%

21. The Plaintiff, Deceased's father, was aged 62 at the time of the accident and was in good health. For the purpose of computing his dependency, Counsel for the Plaintiff invited the Court to adopt the full pre-trial period of 56.5 months plus a multiplier of 2 for the post-trial period. Having reviewed the authorities, I consider this as reasonable and agree to Counsel's suggestion.

22. Pre-trial Pecuniary Loss of the Dependants:-

a) The Plaintiff

$4,940 x 24% x 56.5 months = $66,986.40

b) Chui Kuen - she commenced employment since about April 1995, her Pre-trial claim would be

$4,000 x 14% x 14 months = $7,840.00

c) Chin Mong - he commenced employment since October 1995, his Pre-trial claim would be

($4,000 x 110%) x 24% x 20 months = $21,120.00

d) Chin Man - he started his 3-year degree course at the Hong Kong Academy for Performing Arts this year, his Pre-trial claim would be

$4,940 x 24% x 56.5 months = $66,986.40.

Post-trial Pecuniary Loss of the Dependants:-

a) The Plaintiff

$5,880 x 24% x 24 months = $33,868.80

b) Chin Man - for his 3-year degree course

$5,880 x 24% x 36 months = $50,803.20

Loss of Accumulation of Wealth under LARCO

23. Counsel for the Plaintiff submitted that the Deceased would have achieved an accumulation of wealth of about 20% of her income. However, there is no evidence adduced to support the adoption of this 20% figure.

24. The Defendant disputed the Plaintiff's claim under this head. The Defendant contended that at the time of her death, there was no savings in the two bank accounts of the Deceased (see P.40 to 57 of the Bundle of Agreed Documents). There was no identifiable savings pattern on the part of the Deceased. On the contrary, the Deceased had a debit balance of $5,200 odd in her credit card account with the Hong Kong Bank (P.58 of Bundle of Agreed Documents). The Defendant further submitted that if the Deceased had lived, she would have married and would have her own family to support. The Defendant therefore argued that it would be speculative to make any award under this head.

25. On the issue of accumulation of wealth, Kaplan J. in Chan Sim Lan v Sheen State International Ltd. [1994] 1 HKC 460 stated that:-

'What the Court has to consider is whether, at the date of death by natural causes, there would be 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. ... 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 ...'

The above passage was cited and adopted by Keith J. in Kwan Lai Kuen v National Insurance Co. Ltd. [1998] 1 HKC 103.

26. In the case of Ho Pang Lin & Anor v Ho Shui On & Anor [1994] 3 HKC 294, Deputy Judge Jones suggested three situations a Court would have to consider on the issue of accumulation of wealth. He stated:-

'First and most simply, there is the deceased with the obvious savings pattern. This should applied in quantifying the accumulation and perhaps upgraded for a likely increase .... The second category is where there is no savings pattern and no indication whatsoever from the lifestyle of the deceased whether or not accumulation was likely. ... The third category of situation is that of the deceased without any identifiable savings pattern, but whose habits and lifestyle indicate a probability that he would accumulate wealth. As always, the Court must avoid speculation.'

Deputy Judge Jones further pointed out that savings pattern would assist in establishing the probability of accumulation but was not essential to it. Other factors such as the deceased's lifestyle, his thrift, his age at death, his family circumstances, his employment situation and prospect may point to a probability of accumulation even without an established saving patterns.

27. In the present case, I agree that there was no savings nor identifiable savings pattern on the part of the Deceased. It is also not disputed that the Deceased had a debit balance in her credit card account. But in my judgment, the debit balance in her credit card account is not conclusive evidence that the Deceased could not have accumulated any wealth upon her death from natural causes. It is only one of the factors or indicators that the Court should take into account. The same applies to the issue of possible future marriage. Indeed, it is not uncommon that when a person is granted a credit facility in the form of credit card, he would utilize that credit facility. But by doing so, it does not necessarily mean that that person is unthrifty or improvident. In deciding whether a claim for loss of accumulation of wealth has been made out or not, the Court would have to look at all the circumstances of the deceased's case, in particular the factors suggested by Deputy Judge Jones.

28. As for the Deceased's case is concern, there is evidence from the Plaintiff, which I accept, that the Deceased was a frugal person and that at the age of 34 (at time of her death), she lived a stable lifestyle with few expenses. She was a filial daughter and often cared for her younger sister and brothers. I also accept that as a responsible daughter and the eldest child of the family, she contributed quite a significant proportion of her income to maintain family which left her with no savings. At the time of her death, the Deceased enjoyed a good health and had a stable and remunerative employment.

29. On the other hand, I note that it is probable that had the Deceased married, she might have to share the responsibility of supporting her own family with her husband. But it is equally probable that had the Deceased not married, she would have more money to save out of her available income when her younger brothers became independent and/or when the Plaintiff died from natural causes. As I have pointed out earlier, there is no evidence to suggest that the Deceased, who was aged 34 at the time of her death, was in contemplation of marriage, therefore I would not attach too much weight to this factor when considering the Plaintiff's claim under this head.

30. Having considered all the evidence and circumstances of the Deceased's case, in particular the frugality, the lifestyle, the responsibility, the age, the employment prospects of the Deceased as well as the possibility of a future marriage, I find it more probable than not that the Deceased would have accumulated some wealth by the date of her death from natural causes. The only difficulty is that there is no evidential basis to quantify mathematically the loss under this head. In such circumstances, I think a global award is appropriate. As pointed out by Deputy Judge Jones, any such global award would have an arbitrary element and that the figure should be on the conservative side and related as far as possible to what is known about the Deceased's lifestyle. Having taken all these into account and allowing a discount for accelerated receipt, I consider a sum of $150,000 to be an appropriate amount.

Bereavement/Damage to clothing and personal belongings/funeral expenses

31. The above claims are admitted by the Defendant and I make the following awards:-

1) Bereavement - $70,000

2) Clothing & personal belongings - $1,000

3) Funeral expenses - $35,050

Summary

32. The total award, excluding interest, would be as follows:-

1)	Loss of dependency
	Pre-trial loss	$162,932.80
	Post-trial loss	$84,672.00
2)	Loss of accumulation of wealth	$150,000
3)	Bereavement	$70,000
4)	Clothing/Personal belongings	$1,000
5)	Funeral expenses	$35,050
		$503,654.80

Interest

33. There will be interest on Pre-trial loss of dependency and on special damages at half of judgment rate from date of accident to date of assessment.

34. Following the case of Chu Kang Yee v Giant Ocean Ltd. [1996] 1 HKC 284, interest for the bereavement award will be allowed at the prevailing rate of interest payable on suitors funds from date of Deceased's death.

Costs

35. There is no reason why costs should not follow the event. Accordingly, I make an order nisi that the costs of the assessment to be paid by the Defendant to the Plaintiff to be taxed if not agreed and that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.