CHAN OI YING v. KWONG WAI HUNG AND ANOTHER

HCPI 448/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.448 OF 1998

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(By Original Writ and by Order to carry on proceedings
dated 17 August 2001)

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J U D G M E N T

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1. The deceased died on 24 June 1995 from streptococcus suis, an occupational disease acquired in the course of his work as a roast meat cook in which he came constantly into contact with pig carcasses.

2. The plaintiffs, being the administrators of the estate of the deceased, bring this action claiming damages on behalf of the estate and the dependants of the deceased against the former employers of the deceased.

3. Interlocutory judgment was entered against the defendants on 22 March 2002 for 80% liability and for damages to be assessed.

4. This judgment deals only with the assessment of damages in this matter.

5. Damages are claimed under the following heads, namely, bereavement, loss of accrued dependency, loss of future dependency, funeral expenses and loss of accumulation of wealth.

BEREAVEMENT

6. There is no dispute between the parties that damages under this head should be in the statutory amount of $70,000 as death occurred on 24 June 1995.

LOSS OF DEPENDENCY

7. The main item of dispute between the parties is the pre-accident wages of the deceased. The widow of the deceased gave evidence that she understood his pre-accident earnings to be $13,000 per month as the deceased had told her so before his death. Before the death of the deceased, the widow had at all times been living in Mainland China and had only come to Hong Kong on a one-way permit on the day the deceased died but arrived only after he had passed away. At best therefore her evidence was hearsay. Not surprisingly she had no documents of any kind to show the pre-accident earnings of the deceased.

8. The 2nd defendant, being the employer of the deceased, gave evidence that the pre-accident earnings of the deceased was a basic salary of $8,500 per month, but taking also into account all the other perks that the deceased was entitled to the average monthly salary of the deceased worked out to be $10,583 per month. Again, she had absolutely no documentary evidence of any kind to support that evidence of hers. Even more strange is the fact that the balance sheet and profit and loss accounts, prepared by accountants and attached to the tax returns of the business in which the deceased had been employed as a roast meat cook for at least five years before the accident, in no way support that evidence of hers. Indeed, those accounts do not even show the deceased to be on the payroll of that business nor can it be conceived that his salary could have been included in the item of payment to casual worker simply because the amounts under that entry could not have included the salary to the deceased based on her evidence.

9. I must therefore look elsewhere to see if there can be some corroboration of the conflicting evidence given by either one of them.

10. There is evidence before me from Chan Chau Shing, the brother-in-law of the deceased that on occasions when the deceased took leave to visit his family in China, he would stand in for the deceased as a roast meat cook for the defendants on a casual daily basis and was paid a daily wage of $500 per day for it. That, according to him, is the going rate for a casual worker in that field.

11. While the defendants have disputed that Chan Chau Shing was ever engaged by them as a casual worker standing in for the deceased when the deceased took leave, the defendants have never disputed that $500 was the going rate for such replacement worker on a daily casual basis.

12. Moreover, there is evidence from the Form 2 filed by the defendants that the deceased, when working in their employ, worked on average 26 days per month. This Form 2 was signed by the 2nd named defendant.

13. At $500 per day for a 26 day month would give $13,000 per month. On that basis, on balance of probabilities, I cannot see the deceased working for the defendants at a basic monthly salary of $8,500 even if the other perks would bring it up to $10,583. This is all the more so when during the time between 1990 and 1995 (when the deceased was working for the defendants) the economic climate in Hong Kong was, if not at its highest, very good and there would have been no lack of work in this field for the deceased.

14. From all the evidence before me, I find on balance that the pre-accident salary of the defendant to be $13,000 per month.

15. There is also evidence given by the widow that the monthly expenses for the family in China before the accident came to on average $6,000 per month for the immediate family of the deceased, with a further $1,000 per month being for the living expenses of the deceased's parents and another $1,000 per month representing the gifts bought by the deceased for his family in China.

16. This evidence given by the widow was an estimation calculated by her. This was because the payments made by the deceased to his family was not made on a regular monthly basis. Money was brought back by the deceased to his family in China, sometimes by the deceased himself and sometimes brought on his behalf by others. Moreover, such money was not paid on any regular basis but only as and when the deceased visited the family in China. This could be on a 2-months or sometimes 3-months interval.

17. This evidence is not entirely consistent with the evidence of the deceased parents contained in a declaration by them in writing in which it is stated by them that the deceased contributed about $6,000 per month to support the entire family in China before the accident. To me, that suggests that the $6,000 included the living expenses of the deceased immediate family as well as his parents.

18. Looking at the different versions, I am more inclined to the view that what is stated by the parents of the deceased in their declaration is probably closer to the truth. This is particularly so when I consider the answer given by the widow when asked about the $1,000 spent on gifts. Her reply was that the gifts consist of television, refrigerator and other gifts. These are hardly the kind of gifts which one would expect to necessitate monthly or regular expenditure on or for that matter to cost $1,000 per month on average. I cannot help but feel that there is a measure of exaggeration in the evidence given by the widow as to the amount of expenses by the family in this regard.

19. I therefore find that the monthly dependency of the whole family including the parents of the deceased and gifts to them all to be $6,000 before the accident. The dependents consist of his three children, widow and two aged parents who are retired. Of the dependants, I would apportion $1,000 of the $6,000 to the two parents of the deceased since they are retired and therefore need less expenses for their daily living. The balance of $5,000, I would apportion it in equal shares for the other four dependants, namely, the widow and the three children of the deceased.

20. That leaves the deceased with some $7,000 per month of his income. Of that the deceased need between $3,000 to $4,000 for his own living and other expenditure in Hong Kong, which includes the little enjoyment which he derived from his cigarette smoking, horse betting and having tea with friends. The rest of his earnings, he was able to save up. This I find to be the situation before the death of the deceased.

21. Shortly before the death of the deceased, the widow and the youngest child of the deceased had been granted a one-way permit to come to Hong Kong to join the deceased. They actually arrived here on the day of his death but unfortunately not in time to see him before he died.

22. It is also not in dispute that the second child of the deceased was granted a one-way permit to come to Hong Kong and actually did so in December 1997. The eldest child however remained in China with her grandparents at all times.

23. Between the accident and the end of 1997, during the period when only the widow and the youngest child was in Hong Kong, had it not been for the accident and death of the deceased, the deceased would probably have to incur extra expenses to support the widow and the youngest child in Hong Kong, even accepting that some of the expenses (for example the rent of $400 per month which the deceased was paying for public housing) would have overlapped. This extra expenses would most likely have come out from those moneys which the deceased would otherwise have been able to save.

24. Furthermore, had it not been for the accident, when the second child would have joined them in Hong Kong at the end of 1997, even further expense would have been incurred by the deceased. From that time onwards, such expenses may well have cut into the moneys which the deceased was previously spending for the little luxuries which he enjoyed.

25. I find therefore that between the date of the deceased's death and the end of 1997, the deceased would have incurred extra expenses in the region of about $3,000 to support his wife and youngest child in Hong Kong. After 1997, it is likely that the deceased would have had to cut down on his own expenses as well in order to support his second child in Hong Kong as well.

26. A large part of the evidence related to the factual dispute between the parties as to whether the deceased slept in the shop in which the roast meat business of the defendants were carried on. This factual dispute in my view is a red herring and quite irrelevant to the issues I have to decide. It really does not affect the question of the deceased's own expenses since it is common grounds that the deceased was paying $400 rent per month for public housing at all material times, but that the unit of public housing, according to the plaintiff, was left vacant (despite his paying the rent) and that the deceased lived at the shop. I cannot see that I need to make any findings of fact on this disputed factual issue for me to determine this case.

PRE-TRIAL LOSS OF DEPENDENCY

(a) For the 30 months from date of death to December 1997

27. In respect of his dependants in Hong Kong, i.e. his wife and youngest son, their dependency would be in the region of $5,000 per month which comes to $150,000 for that period.

28. As for his dependants still in China, namely, the eldest daughter, second son and the deceased's parents, their dependency would be in the region of $3,500 per month which comes to $105,000 for those 30 months.

(b) For the period from December 1997 to trial (i.e. 55 months)

29. In respect of his dependants in Hong Kong (after his second son has joined the family in Hong Kong), their dependency would be in the region of $6,500 per month and the loss of dependency works out to be $375,500.

30. As for the dependants remaining in China, namely, the daughter and the parents of the deceased, such dependency would be about $2,500 per month and would come to $137,500.

31. From the above, I make out the total amount of pre-trial loss of dependency to be $150,000 + $105,000 + $375,500 + $$137,500 which gives the sum of $768,000.

FUTURE LOSS OF DEPENDENCY

32. The deceased was 46 at the time of his death.

33. In so far as the multiplier is concerned, I take into account the fact that the deceased was, at the time of his death, a roast meat cook. Had it not been for the accident, he would in all probabilities have remained in that field until retirement. Whilst accepting the work of a roast meat cook is undoubtedly manual work of a skilled type, it is however less strenuous and less heavy than many other types of manual work, as for instance a construction site worker. Moreover, this deceased has a young family and a wife who has never been an income earner as well as aged parents to support.

34. In all the circumstances of this case, I would adopt a multiplier of 11.

35. It was urged upon me in final submission by defence counsel that I should reduce the multiplier by reason of the fact that in the post-mortem report there was a suggestion that the deceased had been suffering from liver cancer (possibly unknown even to himself when he was alive). There is, however, no other medical evidence before me which can shed any light as to the effect of such liver cancer on the deceased or to what stage such liver cancer in the deceased has reached at the time of his death. The only matter that can safely be said relying on the post-mortem report is that the cause of death of the deceased was due to streptococcus suis and that the liver cancer had no part to play in the cause of death.

36. In the absence of any such medical evidence, I am not minded to alter the multiplier of 11. Had the defendant wished to rely on the liver cancer point, it was open to them to call the requisite medical evidence to support their submission. That was not done.

37. At the time of trial, the two sons of the deceased who are now in Hong Kong are students aged 17 and 10 years respectively. I accept the evidence of the widow that the older of the two boys who is about to start Form 4 is getting above-average results at school is fond of studying. In those circumstances it appears likely that the older boy would, given the chance, complete university education.

38. The daughter who is the eldest of the three children has finished technical college in China last year and has worked for a short period of some two months after finishing college. However, after that short stint, she has been unable to find other work.

39. In all probabilities, the deceased would have supported his dependants in Hong Kong. In particular he would have supported the older son until at least the completion of his university education.

40. As for his dependants in China, I am of the view that he would have supported his daughter's living until she could find a steady job or got married. The parents of the deceased are both quite elderly and retired. The deceased would likely have supported them to the end of their lives. In this respect perhaps a further two years of dependency for the daughter and the parents would be reasonable.

41. Therefore the future loss of dependency I make out to be as follows:

(a) for the dependants of the deceased in Hong Kong, using the multiplicand of $6,500 per month multiplied by 47 months (132 - 85 months) which gives $305,500; and

(b) for the dependants of the deceased in Mainland China, using a multiplicand of $2,500 per month multiplied by 24 months which gives $60,000.

Therefore the total amount of future loss of dependency comes to $365,500.

FUNERAL EXPENSES

42. There is a claim by the plaintiff for funeral expenses in the amount of $16,000. This is indeed a very reasonable amount claimed by any standard to the extent that the amount claimed can even be said to be small. However, there is also evidence before me and admitted by the widow that immediately after the death of the deceased, she was given $30,000 by the 2nd defendant in this case. The widow further admitted that the funeral expenses of the deceased had been paid from this sum of money given to her by the 2nd defendant.

43. There is also evidence before me which I accept that before the deceased died, while he was in hospital, the 2nd defendant had promised him that she would take care of his funeral expenses should he die.

44. In submitting that the amount claimed under this head should be allowed, counsel for the plaintiff argued on the footing that the claim for funeral expenses should be allowed unless the court is satisfied that the $30,000 received by the widow from the 2nd defendant was meant to be for funeral expenses amongst other things.

45. It is true that there are authorities to the effect that payment made out of benevolence or charity by third parties to the plaintiff would not be taken into account in reduction of the damages to a plaintiff aptly reflected in these words of Lord Reid in Parry v. Cleaver [1970] AC 1 where he said:

"It would be revolting to the ordinary man's sense of justice, and therefore contrary to public policy, that the sufferer should have his damage reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer."

46. In the present case, I am quite sure that the $30,000 was given by the 2nd defendant to the widow out of a sense of sympathy seeing that the widow and her young son in Hong Kong almost penniless with her husband just deceased.

47. However the 2nd defendant is not a third party but a defendant in the case. The argument that this case is now defended by the insurers does not wash either since the insurers have to defend in the name of, inter alia, the 2nd defendant.

48. Whether or not the 2nd defendant had specifically stated that the $30,000 was to be used for funeral expenses is not important. What is important is the concession by the widow that in fact it was used for that purpose.

49. In all the circumstances of this case and for the reasons given, the claim for funeral expenses is disallowed.

LOSS OF ACCUMULATION OF WEALTH

50. The plaintiff's claim for loss of accumulation of wealth is disputed by the defendants on the basis that there has not been shown by the evidence any saving pattern on the part of the deceased. In so submitting, the defendants rely solely on what can be seen in the bank savings passbook of the deceased.

51. The bank saving passbook of the deceased covers the period from June 1987 to the time of the deceased death when the balance standing was $2,455.75. No regularity can be seen in that savings account. On occasions as for instance for long periods between August 1993 to December 1994 and from July 1994 to April 1995, the balance standing in that account was consistently in 5-figure amount although such amount was not constant but fluctuated within the 5-figure range. At times the balance reached as high as over $70,000.00

52. I also take into account two further pieces of evidence seemingly not referred to by the defendant when suggesting that the deceased had no saving pattern.

53. Firstly, the evidence of the widow that between March 1990 and January 1991 the deceased had used over $230,000 which he had saved up over the years to rebuild the house that the family was living in China. There is a notorial certificate produced in evidence certifying ownership of the 3-storey house at Shiling Village, Huangpou Town, Zhongshan which lends support to that evidence by the widow.

54. Secondly, there is also the evidence of the widow that apart from the money expended to rebuild their house in China, the deceased had also saved up a further $180,000 which they had initially intended to use to buy some other landed property in China, but when the application of the widow and the youngest child was approved for them to come to Hong Kong, that idea of purchasing some other property was dropped and that money was instead lent to the widow's brother in China for doing business.

55. In support of that evidence, the widow produced a document signed by her brother acknowledging the fact that he owed her the sum of $180,000.

56. Although this document was only disclosed and produced at the twelfth hour, after hearing her evidence as to the reason for the late disclosure of this document, I accept her explanation that it was only when she was in Court at a hearing in this matter before Seagroatt J earlier this year that it dawned on her (due to what was said by the judge there) that this loan to her brother could be evidence of the deceased's accumulation of wealth. It was only then that the loan document signed by the brother was disclosed in these proceedings.

57. Moreover, having had the chance to see the original of the loan document for myself, I am of the view that this document was not recently made but rather an old document bearing a date in February 1996.

58. I also accept her explanation that there was an earlier loan document preceding this one but made out in the name of the deceased. However, after his death, this present loan document was made in which the name of the widow was used to replace the deceased's name. It was for this reason that this loan document is dated the date which is on it.

59. The further point taken by the defendant is that if there was any savings by the deceased, whether in the sum of $200,000 used to rebuild the home the family lived in China or the further sum of $180,000 loaned to the wife's brother, these sums cannot readily be seen to have come out of the savings account of the deceased.

60. That may well be so. That suggest to me that the deceased most likely had some other ways by which he invested his savings. This is particularly true when there is evidence before me in the form of the deceased home visit permit where there is recorded sums of money ranging from $7,000 to $23,000 which the deceased brought back into China on five separate occasions from February 1992 to August 1993 when he visited his family there. It is not disputed that he did bring such sums of money with him into China but at the same time, it cannot be seen from the bank passbook of the deceased that those moneys came from his savings account either.

61. Moreover, up to the time of the deceased's death, he alone was in Hong Kong and therefore probably the only person who would have any clear knowledge of where he had invested his money. By the time his widow did arrive in Hong Kong, the deceased had died. It is therefore hardly surprising that she may not be fully aware of all his source of investments apart from his savings bank account.

62. When these matters are taken into account, it can readily be seen that the deceased did make an effort to save up the little that he could for the benefit of his family. Whilst there may not be any visible pattern of savings by the deceased, I cannot discount, on the evidence before me, the fact that the deceased did save up and those savings were no doubt intended by him to benefit his family.

63. I do accept, however, that with the change in circumstances of his family (or at least the major part of his family) coming down to join him in Hong Kong, the deceased, had it not been for the accident, may not have been in as good a position to make the kind of savings that he could previously and that this position would probably have continued for some time to come.

64. However, there would likely come a time when his parents have passed on and when his children became independent, that the deceased would be able to resume his savings to cater for the old age in respect of himself and his wife.

65. In all the circumstances of this case, it would not be unreasonable to make an award of $100,000 under this head of loss of accumulation of wealth.

INTEREST

66. In so far as interests is concerned, the plaintiff asks for the usual interests to be awarded. The defendants, while accepting the rate of interests suggested by the plaintiff, argues that the period of interests should not be the usual period due to the fact that there has been unjustifiable delay by the plaintiff in bringing and prosecuting this case.

67. Admittedly, this case has taken just over four years to come on for hearing. The Writ was issued in May 1998. One important reason for that is that this is the first case of its kind in Hong Kong based on occupational disease taking the form of streptococcus suis. Not surprisingly that entailed some difficulty on the part of the plaintiff's legal advisers not only in framing its case and advising the plaintiff but also in tracking down the right experts to give expert evidence relating to streptococcus suis.

68. Liability was at all material times a live issue in this case until the defendant consented to judgment but that was not until March 2002.

69. I accept that the plaintiff's legal advisers had their share of genuine difficulty in the prosecution of this case. Had this been the usual fatal accidents case, I may have been more sympathetic to the submission by the defendants as to unjustifiable delay in the matter.

70. In the circumstances of this case, I do not share their view that there was unjustifiable delay by the plaintiff.

71. Interests would be awarded on the amount of bereavement at suitor's fund rate (1.65%) from date of death of the deceased.

72. Pre-trial loss of dependency will carry interests at half judgment rate (4.06%) from date of death of the deceased.

SUMMARY

CONCLUSION

73. Accordingly, there will be judgment to the plaintiff in the amount of $471,036 such sum to be paid into court within 14 days. Upon payment in to court of the judgment sum, I shall hear the plaintiff as to apportionment and payment out.

COSTS

74. There will be the usual costs order nisi that the defendants do pay the plaintiff the cost of the assessment (including the further application for apportionment and payment out), to be taxed if not agreed. Such costs order to be made absolute upon the expiry of 14 days should there be no application to vary or alter same by either party.