KWAN YAU TAI and Another v. ENG KONG CONTAINER SERVICES LTD. and Another

1996, No. PI-1238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Assessment of Damages

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1. This action is brought on behalf of the estate of Ho Yuet Ming, the deceased, ("the Deceased) and his dependants, under the provisions of the Fatal Accidents Ordinance, Cap. 22 ("FAO") and the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 ("LARCO"). It arises out of an industrial accident on 17.10.1989 at a container yard operated by the 1st Defendant in Tai Lam Chung, Tuen Mun, where the Deceased was employed by the 1st Defendant to work as a hookman. The 2nd Defendant was the supplier of the cranes for use at the container yard. At about 5:30 p.m. that day, the Deceased was working on the top of a stack of containers and in the course of lowering the containers onto a container truck with the aid of a crane. After one of the containers was hoisted up to about 40 feet above the ground, it suddenly fell as the brackets holding the slings, which were hooked to the container, became detached from the jib of the crane. The Deceased, who was on the top of it, also fell to the ground. He was certified dead before arrival at the Yan Oi Polyclinic.

2. By the Writ filed herein, the Plaintiffs, as administratrices, claim against the Defendants for damages in negligence, breach of employment contract, breach of common duty of care under the Occupiers' Liability Ordinance and breach of statutory duty. By consent, interlocutory judgment for damages to be assessed together with interest and costs was entered against both Defendants on 7.5.1997.

3. At the time of his death, the Deceased was aged 27 and married with 3 sons. He came from a fishing family. About 2 years prior to the accident, the family's fishing boat was sold and the entire family, comprising the Deceased's parents and siblings and his own family, moved to live ashore. At about the same time, the Deceased started working for the 1st Defendant on the container yard. At the time of the accident, his average monthly income was $9,192.

Loss of Dependency under the FAO

4. The evidence led on behalf of the Plaintiffs shows that, prior to the accident, the Deceased's household at Butterfly Estate comprised 10 people, being :-

(1) the Deceased ;

(2) the widow, Kwan Yau Tai, aged 30 ;

(3) the Deceased's 3 sons, Ho Wai Lun, Ho Chi Wing & Ho Chi Wah, aged 4, 2 and 1 respectively ;

(4) the Decease's father, Ho Yung Kan, and mother, Fung Ka So, both aged 56 ;

(5) Ho Tak Sang, the Deceased's younger brother ("Tak Sang'), aged 15 ;

(6) Ho Yuet Lin, the Deceased's younger sister ("Yuet Lin") ; and

(7) Ho Chor Yee, the Deceased's younger brother ("Chor Yee").

5. Four members of the household were working. They were the Deceased, his father, Yuet Lin and Chor Yee. The Deceased's father worked as a lift operator at construction site, earning $5,000 to $6,000 a month. Yuet Lin worked in a factory and earned between $3,000 and $4,000 a month. As for Chor Yee, he continued to work as a fisherman for his relatives.

6. As to the rest of the members, the widow had not worked after the family moved to live ashore and she had been a psychiatric patient shortly after the birth of the second son. The Deceased's children were too young to work. The Deceased's mother had ceased working several months before the accident so as to look after the Deceased's children in view of the health condition of the widow. As for the Tak Sang, he was a student and he only quitted school 2 years after the Deceased's death to work as a fisherman.

7. The claim under the FAO is therefore made in respect of the dependency of the widow, the Deceased's 3 children, his parents and his youngest brother, Tak Sang.

8. The household was run by the Deceased's mother. According to her, the Deceased regularly gave her $4,000 each month as household expenses. In addition, he would give her $600 to $700 (giving an average figure of $650) as pocket money, which was also spent on the household. She also received from Yuet Lin on the average $500 a month which she also applied towards the household expenses. There was no contribution made by the Deceased's father and Chor Yee. In the case of the father, this was because he had to support his own elderly father and also to be responsible for the school fees and pocket money of Tak Sang. For Chor Yee, he was making irregular income. In fact, he was at sea for most part of the year and the time he stayed at home between voyages was very brief.

9. The widow also gave evidence to the effect that the Deceased gave her $2,000 to $3,000 a month (giving an average figure of $2,500) which was spent equally on herself and the 3 children.

10. The Plaintiffs claim a notional increase of 10% p.a. in the Deceased's income. This is disputed by the Defendants. No evidence has been led to support this figure. The Defendants are, however, prepared to accept a 8% annual increase. Given the state of evidence, I can only adopt the 8% annual increase, hence his monthly contribution in computing the Deceased's contributions to the household expenses. At the time of assessment on 22.12.1997, his contribution for the entire household would have been increased by 85% to $8,602.50 (i.e. ($4,000 + $650) x 185% ). The median contribution is therefore $6,626.25 (i.e. ($4,650 + $8,602.50) x 1/2). Similarly, the contribution for the benefit of his own family would have been increased to $4,625 (i.e. $2,500 x 185%), producing a median of $3,562.20 (i.e. ($2,500 + $4,625) x 1/2).

11. The claim of dependency of the Deceased's father is also challenged by the Defendants. It was pointed out that he was gainfully employed and was in a position to support his own father and the Deceased's youngest brother, Tak Sang. The submissions was that he should not be regarded as in any way financially dependent on the Deceased. I note that in the List of Dependants provided by the Deceased's mother in November 1989 for the purpose of the Employees' Compensation claim (p. 19 of the Bundle of Documents), the father was not included as one of the dependants of the Deceased. Neither was the youngest brother, Tak Sang. Despite that and notwithstanding the submissions advanced for the Defendants, I am prepared to accept the claim of dependency of the father. Firstly, the fact that he was making an income and supporting others is not necessarily incompatible with a claim of partial dependency. Secondly, the fact remains that he was a member of the household and had benefited from the household expenses, without making any contribution. Thirdly, it is not difficult to imagine and it is probable that if he were to contribute to the household instead of supporting his father and Tak Sang, the burden of supporting Tak Sang, to say the least, would be shifted to and shouldered by the Deceased.

12. In calculating the share of each dependant in the Deceased's contribution, I would disregard the sister, Yuet Lin, and the other brother, Chor Yee. In the case of Yuet Lin, she was effectively paying for her share of the household expenses by giving her mother about $500 per month. As for Chor Yee, although he hardly gave money to his mother, he seldom stayed home. The time he spent at home between voyages ranged between several hours to a day or two. As such, he cannot be regarded in practical terms as having shared in the contribution made by the Deceased to the household. The contributions given to the mother for the entire household are therefore to be shared between 8 members. The median for each share is $ 828.28 (i.e. $6,626.25 x1/8 ) As for the contribution given to the widow, it is to be divided between the Deceased's family of four, giving a median of $890.63 for each share (i.e. $3,562.50 x 1/4).

13. For the purpose of quantifying the loss of dependency, the Plaintiffs seek a multiplier of 16 for the 3 sons and one of 14 for the widow and the parents. The Defendants take issue with the multiplier of 16.

14. It is to be noted that for the purpose of the LARCO claim, the Plaintiffs have adopted a multiplier of 14. Considering that the Deceased was 27 years old when he met his death and the nature of the work that he was engaged in at the time of the accident as well as the fact that he had plan to resume his previous occupation as a fisherman (a subject matter which I shall return later), I consider that 14 will be an appropriate multiplier for calculating the loss of dependency of the widow and the 3 children. While accepting that the widow is young and the 3 children are of tender ages, the duration of their dependency cannot exceed the estimated working life of the Deceased.

15. As for the Deceased's parents, the multiplier of 14 is inapplicable. Firstly, they were already aged 56 when the Deceased died. Secondly, it is not unreasonable to expect that their dependency on the Deceased would reduce in time as the Deceased's children grew older. This is particularly so for the Deceased's father after Tak Sang ceased schooling and upon the death of his own father. The Defendants have accepted a multiplier of 10 for the parents and I regard that as very reasonable.

16. The pre-trial period is therefore 98.19 months (i.e. 98 months 6 days as at 22.12.1997) and the post-trial period is 21.81 months for the parents and 69.81 months for the widow and the children.

17. The calculations for the loss of dependency are as follows :-

(1) Pre-trial Loss of Dependency

(a)	The deceased's parents
	$828.28 x 98.19 months x 2 = $162,658
(b)	The Deceased's brother, Tak Sang
	$828.28 x 24 months = $19,879
(c)	The Widow and the 3 children
	($828.28 + $890.63) x 98.19 months x 4 = $675,119
(d)	Total pre-trial loss of dependency
	$162,658 + $19,879 + $675,119 = $857,656.

(2) Post-trial Loss of Dependency

(a)	The deceased's parents
	$828.28 x (21.81 months) x 2 = $36,140
(b)	The Deceased's brother, Tak Sang
	Nil
(c)	The Widow and the 3 children
	($828.28 + $890.63) x (69.81 months) x 4 = $479,988
(d)	Total post-trial loss of dependency
	$36,140 + $479,988 = $516,128.

Loss of Accumulation of Wealth under the LARCO

18. To succeed in a claim for loss of accumulation of wealth under section 20(2)(b)(iii) of LARCO, there must be evidence that wealth would be accumulated as at the date of the likely natural death of the deceased.

19. In Chan Sim Lan v. Sheen State International Ltd. [1994] 1 HKC 460, at p. 472 D-F, Kaplan J. observed that the existence of some savings at the time of the accident does not necessarily mean that such savings would have been in existence at the time of the natural death. In his Lordship's judgment, accumulation of wealth would denote money which the deceased would have saved during his working life, but which he would not spend during his retirement or life time and which he would died possessed of (at p.474H).

20. In Ho Pang Lin & Anor. v Ho Shui On & Anor. [1994] 3 HKC 294, Deputy Judge Jones pointed out that evidence of a pattern of savings while useful and desirable, is not essential to establishing a probability of accumulation of wealth. Other relevant factors in considering the probability include the Deceased's lifestyle, his thrift, his family circumstances, his age at death and his employment prospects. The Deputy Judge suggested 3 situations which the Court would have to consider on the issue of accumulation of wealth. The Plaintiffs submitted that their case falls within either the first or third category, namely, the Deceased had an obvious savings pattern; or alternatively, if an identifiable savings pattern cannot be proved, the Deceased's lifestyle and habits indicate a probability that he would accumulate wealth. The Defendants, on the other hand, contended that it is a case of the second category, namely, there is no indication from the lifestyle of the Deceased as to whether wealth is likely to be accumulated so that it would be speculative to make an award under this head.

21. The Deceased had kept 2 bank accounts. The first was with Standard Chartered Bank with a final balance of $30,277.17; the other with Bank of East Asia with a balance of $8,580.24. The total savings were $38,847.41. Mr. Wright for the Plaintiffs submitted that the bank accounts show a clear pattern of savings. This I do not agree. The Bank of East Asia account, which was opened in 1981, was not in active use. Apart from the initial deposit, there were only 5 deposits made throughout the 8 years. There is hardly any pattern of savings, whether before or after the Deceased changed to work ashore. In respect of the Standard Chartered Bank account, it was opened in April 1988, about half a year after the Deceased changed to work on land. The Deceased had been paying his earnings into this account and making a number of withdrawals towards the end of each month. From the summary prepared by Mr. Lam for the 1st Defendant, it can be seen that while in some months, the deposits exceeded the deposits, there were other months in which the withdrew more than he had deposited. There were no less than 5 months in which there was neither deposit nor withdrawal. It does not suggest a systematic pattern of savings, although it does show that in the 18 months prior to his death, the Deceased had a surplus of income over expenditure.

22. I now turn to see if there are other factors from which it can be inferred that there is a probability of some wealth being accumulated. The Deceased was 27 at the time of his death. Evidence was led that he was a frugal and responsible man leading a simple lifestyle with no expensive habits or vices. Over 70% of his income went to the maintenance of his own family, parents and brother. Indeed, he had a heavy family burden, given the health condition of his wife and the tender ages of his children. It is the evidence of the mother that the family was financially rather tight and could barely make ends meet. Notwithstanding that, it is evident that the Deceased had managed to retain part of his income.

23. Neither the mother nor the widow was aware of any specific purpose for the money kept in the bank accounts, but they believed that it might be for the Deceased's children. Both of them also agreed that, about one year before his death, the Deceased had started to plan the purchase of another boat with the intention of returning to fishing. The purchase price of about $1 million was to be met by loans from relatives and finance company. This plan had been discussed in the family and the consensus was that all family members, excluding the Deceased's elder brother, would all return to the sea to make a living. The boat had indeed been ordered, but it was only ready after the Deceased's death and was taken up by the Deceased's younger brothers, Chor Yee and Tak Sang. The Defendants had suggested that the Deceased was probably saving up in 1989 for the purchase of the boat, so that the savings might be exhausted in due course. I note that the total savings only represented a minimal portion of the cost of the boat whereas the boat was expected, at the time of the death, to be ready soon. It is therefore equally probable that the cost of the boat was intended to be met by sources other than the money in the Deceased's bank accounts. Given the state of evidence, I find it difficult to attach a purpose to the money standing in the bank accounts and/or to conclude that it is more probable that he was saving up for the new boat than for any other purpose.

24. Mr. Lam for the 1st Defendant had also submitted that, in view of the new fishing venture that the Deceased had intended to embark upon, it would be speculative to infer that he would have accumulated wealth upon his natural death. It was pointed out that any saving he would have made would be exhausted during his life time, either by reason of the large capital outlay required for the fishing venture or because of the risky nature of the business. I accept that, with the intended change in career, it is inappropriate to adopt the income position at the time of the accident to assess the level of earnings, hence the amount of savings, which the Deceased might make in future. The pattern and amount of earnings from working as a hookman in a container yard are clearly different from those of a fisherman. It is the mother's evidence that the income from fishing was neither fixed nor regular.

25. In my view, what is of significance and which I cannot overlook is the fact that the Deceased had been able to save up some $30,000 over a period of 18 months, as demonstrated by his Bank of East Asia account. This is not a negligible amount when compared to his average monthly income of $9,192 at the time of his death. He was able to do so despite his heavy family commitment and amidst the tight financial situation of the family. The inference to be drawn from this is that the Deceased was consciously making an attempt not to exhaust his income and to save whenever possible. He is certainly not to be viewed upon as a person with no recognizable pattern of lifestyle nor whose lifestyle gives no indication as to whether accumulation of wealth is likely. Further, although it is also the mother's evidence that the fishing business may at times be run at a loss, it is only reasonable to infer that there will be times when profits will be made. That is also the evidence of the mother. Had it not been the case, it will be difficult to understand why the Deceased and the other members of the household would want and agree to return to the sea to make a living.

26. I consider that the evidence taken as a whole, in particular, the frugality, lifestyle and responsibility of the Deceased, does show a probability that the Deceased would have continued to save up some of his earnings even after he took up fishing, and that he would have retained part of his savings on his notional death.

27. I, however, find it difficult to accurately assess what his savings would be by the time of his notional death. I agree with Mr. Lam that it is unrealistic to calculate on the basis of 23% of the income as a hookman. Firstly, the evidence is that he would be changing his career soon. Secondly, with the change in the pattern of earnings and the heavy family commitment, he would not be in a position to make regular saving. There is also no assurance that he could save as much as he had in the one to two years before his death. This is a case which is impossible to quantify mathematically the loss under this head and that the making of a global award will be a more appropriate approach. I consider $200,000 to be an appropriate amount.

Bereavement and Funeral Expenses

28. The claims of $40,000 for bereavement and of $45,000 for funeral expenses are agreed.

Fund Management for the Children

29. The Plaintiffs claim 10% of the total award as the expenses for managing the awards made to the children. This is said to be based on Leung On v. Chan Pui Ki 1995 Civ App 263 of 1995.

30. I do not accept that there is a basis for making such an award, which is normally available in non-fatal personal injury cases where the Plaintiffs, by reason of health or age, require professional assistance in managing the awards made. In this case, the award to the 3 children is by means huge in amount and will be held by the Court for investment at the Registrar's discretion. There is simply no need for resorting to any fund manager.

Deduction

31. The employees' compensation award of $356,000 together with interest thereon at 5.84% p.a. from 3.7.1990 (being the last date for paying the ECC award into Court) to date of assessment is to be deducted from the award of loss of dependency. The total deduction is therefore $511,304 (i.e. $356,000 + ($356,000 x 5.84% x 7.47 years).

Interest

32. The Defendants argue that interest should not be awarded for the full period from the accident because of the delay in bringing the action to trial.

33. The accident happened in October 1989. The Letters of Administration was granted in 1992 and the Writ was issued in October 1992. Discovery began in June 1993. In April 1994, the Plaintiff had to apply to strike out the Defence of the 2nd Defendant for failure to allow inspection of documents disclosed. This was subsequently resolved by consent. There was then amendment to the Statement of Claim in September 1995 with leave granted to the Defendants to amend their Defence. The 1st Defendant did not amend within the time limit and had to apply for an extension of time which was resolved by consent summons in February 1996. In November 1996, on the Plaintiffs' application, the action was set down for a pre-trial review in March 1997, which was adjourned on the Plaintiffs' request. In May 1997, interlocutory judgment on liability was entered. Leave to set down for assessment was given in September 1997.

34. Looking at the history of the litigation as summarised above, while it can be said that the Plaintiffs could have moved on with greater speed and diligence, both Defendants had also contributed to the delay in the proceedings. Interest should therefore be awarded up to the date of assessment. There will be interest on the bereavement award at 2% from the date of Writ to date of assessment and on the pre-trial loss of dependency and funeral expenses at the rate of 5.84 % p.a. from the date of the accident to the date of assessment.

Conclusion

35. The total sum awarded is therefore $1,583,368, the breakdown of which appears as below :-

Loss of dependency
Pre-trial loss of dependency	$857,656
Interest on pre-trial loss of dependency	$410,213
Post-trial loss of dependency	$516,128
Less :
ECC award plus interest	$511,304	$1,272,693

Plus :

Loss of accumulation of wealth

$ 200,000

Plus :

Bereavement
Award	$ 40,000
Interest	$ 4,152	$ 44,152

Plus :

Funeral expenses
Award	$ 45,000
Interest	$ 21,523	$ 66,523
		$1,583,368

36. The apportionment of the award is as follows :-

37. The amounts awarded to the children will be paid into and kept in the Court to be invested or dealt with by the Registrar for their benefit and with authority to make payments out at the Registrar's absolute discretion for the maintenance education and advancement of the children until they attain the age of 18 respectively. There be liberty to apply.

38. I also make an order nisi that the Plaintiff shall have the costs of the assessment, to be taxed against both Defendants and that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulation. The costs order to be made absolute after the expiration of 14 days from the handing down of the judgment.

(C. Chu)

Master, High Court