CHU WO HEUNG AND ANOTHER v. HUI LAI WA AND OTHERS

HCPI 952/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 952 OF 1996

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J U D G M E N T

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1. On the 3 August 1994 at about 1800 hours, Mr Yuen Fook Wah was walking past a line of shop premises in Lung Fung Garden when he was struck by a piece of metal piping which entered his chest and caused his death within a relatively short time. On the face of it, his tragic death was the result of a freak accident. The pipe in question was part of an awning structure outside shop number 39A2 in the Lung Fung Garden commercial complex.

2. At about 1700 hours the Hong Kong Observatory hoisted the rainstorm signal effective until 2200 hours. Heavy rainfall was recorded from about 1800 hours onwards. Winds became stronger gusting on occasions up to 60 k.p.h. The effect of these weather conditions at Lung Hung Garden was to detach the awning structure outside the shop in question from its moorings and cause one of the metal pipes to act as a projectile swinging with such force as to enter a man's chest.

3. It is not disputed that Mr Yuen Fook Wah died as a result of this pipe or pole penetrating his chest. No allegation of contributory negligence could sensibly be made against him. He was going about his lawful business on the pavement or walkway outside these shop premises. It is also agreed that the offending awning structure was attached to part of the shop premises, being number 39A2, a fruit vendor's business. The sole issue is who, singly or in the plural, amongst the Defendants, is or are liable in negligence to the Plaintiffs for the deceased's death.

4. It may be sensible to identify at the outset all the Defendants involved in this action.

The Parties

5. The first Defendant, to whom I shall refer throughout as Madam Hui, is the lady who signed the lease of the shop premises, as lessee, on the 15 July 1994, just over two weeks before this fatal accident. She also signed the application for the Business Registration Certificate for the Lung Fung Super Fruit business to be carried on at these premises. She is unrepresented in these proceedings.

6. The second Defendant, the registered owners of the shop premises who are the lessors under the lease to Madam Hui, are no longer parties to this action, the Plaintiffs having discontinued against them by consent order dated the 25 April 2001. However they remained in the action by reason of the Contribution/Indemnity Notices served by the 5th and 6th Defendants until the first day of the trial and the third day of the trial respectively. I no longer have to be concerned with them in any respect and there is no costs issue to be resolved.

7. The third Defendants being the Incorporated Owners of the premises subsequent to the date of the incident, should not have been involved and were struck out as Defendants by order of the court dated 6th October 2000.

8. The fourth Defendant is the manager of the fruit business at the shop premises in question. He is a friend of Madam Hui. He ordered and arranged the installation of the awning. He was working at the premises when the tragedy occurred. He is also unrepresented in these proceedings.

9. The fifth Defendant is the management company for the Lung Fung Garden complex. Its duties or obligations are set out clearly in the Deed of Mutual Covenant entered into by all the owners of the various units. There are strict requirements imposed upon the various owners to be enforced by the management company.

10. Finally the sixth Defendants are the unincorporated owners at the time of the accident on the 3 August 1994. These unincorporated owners exclude of course the owners of shop premises 39A2, i.e. the original second Defendants. Their relationship with the management company is clearly identified in the Deed of Mutual Covenant. The manager existed and acted as their agent and they had covenanted to that effect.

The Case against the First Defendant

11. This is based entirely on the two documents signed by her as lessee of the shop premises (on the 15 July 1994) and as sole proprietor of the business in the application for a Business Registration Certificate (7 August 1994). The evidence as to how these came about comes from her and the fourth Defendant.

12. Originally Madam Hui's sister who lives on the Mainland was to provide the capital and set up the fruit business with Mr Wong Pun Wai. According to Madam Hui herself, her sister changed her mind preferring to invest the money in a flat. Mr Wong thought that she was still interested in running a business with him but was unable to bring the money over to Hong Kong in time to set up the business in their name or her name.

13. Accordingly Madam Hui was asked to sign the lease and the application in order to protect what was believed by Mr Wong to be her sister's future investment. When his attention was directed to the date on the application form and the fact that he agreed that the sister had ceased to be interested by them, he said the reason for using Madam Hui's name, and persuading her to sign the form was that he did not want his wife who was divorcing him (or he, her) to know he was involved in such a business.

14. Madam Hui says that she is virtually illiterate, that she had no money to invest in a business, paid no rent under the lease, and received no benefit from it. Nor did she play any part in running it. Mr Wong confirmed that she had no part in it and that he alone ran the business with some help from others.

15. Although at one stage I thought his change of explanation for Madam Hui's signature on the application form was facile and may have been a quick change of tune, I have concluded that he was using Madam Hui for his own purposes, that she never intended to play any part in the business, and never did so, and signed her name under mistake of fact and law, without appreciating the implications and potential liabilities. I think she was, at the very least, na?ve, and innocently so.

The Case against the Fourth Defendant

16. I need not repeat the matters set out under my consideration of the First Defendant. Mr Wong admits running the business at the shop premises as his own.

17. He ordered from New Star Company a red awning sometime in July. The invoice is dated the 22 July 1994. Someone from that company came to the premises to take measurements. The awning and fittings were delivered in late July and New Star's employee made preparations to fit and install it. At this stage the evidence takes a significant turn. It comes from Mr Wong himself, no one from the company having been called to give evidence, and the company is not a party to the proceedings.

18. Before the 1 August 1994 he said New Star's employee came prepared to fix the awning. The awning itself was to be attached to the underside of the projecting part of the building which seemed to act as a canopy over the first few feet of the exterior of the shop premises. The awning was then to extend across the forecourt and part of the pavement area, the end of it being stretched and held by a horizontal pipe. That pipe was then supported at either corner by a vertical pipe with a U-shaped cup or fork in which the end of the horizontal pipe rested. These vertical pipes were then braced by two stays or guyropes tightened and secured to a metal ring which was fixed in the ground. It is important to note that the bottom end of the two vertical pipes rested simply on the ground. There was no insert or recess into which the vertical pipes could fit and be given any lateral support. The sole means of support were the two stays or guyropes.

19. However before the awning could be fixed some two or three persons from the Management, the fifth Defendants, came and stopped it from going ahead, saying that no application had been made to fix the awning. How far the installation had gone at that stage is not clear but it is likely that it had not gone further than the positioning of a ladder for New Star's employee to fix one end of the awning to the edge or underside of the projecting tiled concrete canopy. It must have been obvious however that he was in the process of so fixing it.

20. Mr Wong, concerned no doubt to get permission, asked how he should go about it. He was told to produce a drawing showing the awning's dimensions for the Management's consideration. He said that on that same day he made a drawing and took it to the Management office where he saw two of the same people he had seen earlier that day. He explained that he was producing a drawing and making an application for permission to have the awning installed. He was not asked to fill in a form and he was told that he would have to wait for his application to be approved, but he was not told how long it would take. About 3 or 4 days later he visited the office again and asked if it was in order for him to proceed. He was told he could proceed. No written authorisation was given to him. One of the persons present had also been present at the time that he handed over the drawing. Following this he telephoned New Star and arranged for the installation to be carried out the following day. It was duly completed in a few hours - his best recollection was that this was towards the end of July, perhaps the 27 or 28. During the period which followed up to the 3 August he said he frequently saw Management staff walking near the premises, although he cannot recall anyone specifically coming to look at his awning. No one told him to remove it.

21. At this stage it is convenient to consider and contrast the evidence given on behalf of the Management company. It came from Mr Leung Yui then Regional Manager of the 5th Defendants.

22. He explained what the normal procedure was for any tenants seeking to erect awnings. - a formal application with drawing giving the colour of the awning; a visit to the premises by the Management staff; a consideration of the application by him with his staff; then permission or rejection communicated to the applicant within a week. He produced documentation relating to formal applications made collectively by a number of businesses for approval of awnings. It appears that approval or otherwise was communicated orally to the applicants.

23. Although Mr Yeung said that he did not learn of the fatal accident until July or August 1997 some three years later, as a result of these proceedings being commenced, he was able to say that he had visited the premises in question on 1 August, two days before the accident. I need to return to this chronology later but for the moment it is necessary to state that he had no written record of such a visit to rely upon.

24. He says he recalled seeing the awning already fully erected and had the clear impression that it was attached to the underside of the projecting podium. He is correct on this at least. The other end of the awning was held in position by several poles positioned on government land. By that he must mean the pavement itself or the walkway between the kerbed edge of the pavement and the flower and shrub concrete trough.

25. He with his colleagues approached the man in charge of the shop and informed him that he would have to make an application for permission to install the awning otherwise it would have to be removed. A letter and drawings would have to be submitted. He also made complaint about the obstruction of the frontage by the fruit and other goods or items. According to Mr Yeung there were no records or documents in relation to any visit, application or authorisation in respect of the awning, and no recollection on his part of any subsequent visit to these premises though he said his next visit was at the end of the week. He has no recollection in respect of the awning.

26. A number of aspects of his evidence in cross-examination are significant. The reason he requested an application in respect of the awning was that it was attached to the building over which the management company obviously had control and an interest in ensuring that structures were not attached without permission or approval. He did not tell the person in charge of the shop to take the awning down there and then. His approach was that an application should be made or the awning should be removed. He viewed the awning as safe in itself. If he had thought the awning dangerous he would have told the person in charge to take it down straightaway. His concern was that it was not a legal structure - at least, not yet, is the inevitable corollary of his prime thought.

27. There are clear conflicts in the evidence of Mr Wong, the 4th Defendant, and Mr Yeung for the 5th Defendants. Some of them do not matter. They are agreed that there was a visit during which Mr Wong was told that he would have to obtain permission for the awning. Whether it was already fully installed or was being prepared for installation does not really matter. I think Mr Wong is more reliable on this aspect because his recollection would have been triggered by the tragedy which followed so soon afterwards. Mr Yeung on the other hand did not start to reflect upon the position until at least three years later. It may well have been in a somewhat more advanced state of installation than Mr Wong thought but Mr Yeung was concerned to ascertain what form this awning would take. I am satisfied that at some stage he did see it fully installed though this was later than the occasion he mentions.

28. It follows that I am satisfied, because I accept Mr Wong's evidence on this, that he did make application at the management office, to have the awning installed, supported by a drawing, and that several days later he was granted this permission and accordingly arranged for the awning to be installed. I do not accept Mr Yeung's evidence as to the date of the visit by management staff when Mr Wong was told to make an application. Mr Wong was probably correct in putting the occasion several days earlier in July.

29. I also accept his evidence that he was given oral approval for the awning to be installed. There are several factors which support his evidence on this aspect. Mr Yeung did not tell him to take the awning down when he saw it in the course of being installed - or as he says fully installed. At that stage he saw nothing intrinsically wrong or dangerous about it. It was not legal simply because permission had not been given for its existence. Had he had any serious doubts as to whether permission would be granted when sought, he would in my view have said, there and then, that it should be taken down. I also accept that Mr Yeung visited the premises when the awning had been fully installed. I am equally sure that this was after permission had been given and that he is understandably confused and mistaken bearing in mind three years had elapsed before his recollection was activated.

30. Mr Wong's evidence was of course that he was told before it was erected that permission was needed. I have already dealt with his evidence and that of Mr Yeung about the stage reached but what matters is Mr Yeung's attitude and the inferences reasonably to be drawn from it.

31. Photographs taken of the frontage of the business premises, which included the one in question, in 1995 and later, show the existence of some awnings which are significantly different from the structures which the management sought to regulate. I shall return to this topic but they illustrate a rather easy-going attitude by the management toward the awnings installed by shop operators. Despite the form of documents in respect of other applications, I am satisfied on all the evidence that the handling of Mr Wong's application was far less formalised than the ideal - and norm - advanced on behalf of the 5th Defendants.

32. Against this evidential background the Plaintiff's case against the fourth Defendant is quite clear. He installed the awning albeit with permission. It was in my view an inherently dangerous structure with little if any stability or firmness of structure. A passer-by could easily strike one of the vertical poles thus dislodging it and in effect lowering the outer part of the awning which would then become dangerous in at least two respects: the horizontal pole could fall on the head of any passer-by and the vertical pole, no longer vertical, had negligible restraint by the guyrope or stay. Extra stress would be put upon the guyrope. It was eminently foreseeable that moving poles, horizontal or partly vertical or both, constituted an obvious risk of injury to passers-by.

33. The fourth Defendant ought to have appreciated this inherent danger. It was obvious to anyone. In adverse weather conditions, particularly wind and rainstorms, this risk was so heightened that it constituted a threat to anyone in the vicinity. There had been a warning of adverse weather conditions. Such conditions were highly likely to exert upward or downward pressure on the awning. Great strain would be put on the guy-ropes or stays causing them to be slackened or broken. Upward pressure beneath the awning would lift the vertical poles. It had only to lift them a fraction to cause them to move freely, there being no recess to hold them steady.

34. The observatory hoisted a thunderstorm warning at 1700 hours which was to be effective until 2200 hours. Even if Mr Wong was unaware of such a warning, which I find difficult to accept, he was nonetheless aware of worsening weather conditions before the accident and he did nothing. The awning ought to have been taken down.

35. In my judgment he was undoubtedly negligent.

The case against the fifth Defendant

36. I do not need to re-iterate the evidence relating to the management company's knowledge and understanding of the existence of the awning installed nor repeat my findings in that regard.

37. On Mr Yeung's own evidence he had seen the installation. He seems to have discounted the significance of the flimsy installation at the outer end i.e. the poles and guyropes, because they were positioned on government land. It is in fact wholly irrelevant that they were so positioned. What was relevant was that the awning was fixed to the projecting part of the building and extended across the frontage onto the footpath or pavement.

38. Mr Yeung did not appreciate that it was a dangerous structure. He seemed concerned only that it was not legal i.e. that there was no permission from the management for it to be installed. He said that had he appreciated that there was such a danger he would have ordered that it be taken down. And so he left it.

39. It is clear from Mr Yeung's evidence that the shopkeeper was obliged to seek permission to erect such an awning and submit a drawing of its dimensions, that the management exercised control over the existence and form of such structures. They obviously had a responsibility in that regard. They therefore assumed a duty of care towards the public to ensure that no building, structure, fitting or attachment over which they had control constituted a hazard. In purporting to exercise control over this awning they clearly asserted responsibility in that regard.

40. The projecting concrete canopy, to which the awning was fixed, fell within the common parts of the building. It certainly was not within the exclusive possession of the fourth Defendant. The very fact of the demand of Mr Yeung for compliance with the management's requirements makes this doubly clear.

41. By virtue of the Deed of Mutual Covenant the management of the Estate had been delegated by the owners to the Management Company, namely the fifth Defendant. Clause 41 of the Deed provides that:

"The management of the Estate shall be undertaken by the Manager and in accordance with the conditions from the date of issue of the first Occupation Permit for any part of the Estate and each owner hereby appoints the Manager irrevocably as afterway to enforce the provisions of this Deed."

42. The fifth Defendant had thereby contractually assumed the rights and obligations in respect of the common parts of the building constituting the estate. As I have already stated, their attitude towards the awning and the requirements they imposed upon the fourth Defendant is a clear assertion of their responsibility and liability in this regard. The contrary is just not arguable. The duty of care imposed upon the fifth Defendant extended to all members of the public, including other owners, to ensure that the awning, or any attachment to or extension of the common parts, or any section of the common parts themselves e.g. the projected canopy, was reasonably safe at all times.

43. In Cunard v Antifyre 1933 1 K.B. 551 Talbot, J. said, (at p. 562) in relation to a claim for damages for personal injuries occasioned by the fall of guttering from the main roof of a building through the glass roof of a kitchen of a third floor flat:

"There is no doubt that if this guttering had overhung the street in the condition proved in the case ..... and had fallen on someone passing below and injured him, that person would have had an action against the defendants on the principle of Tarry v. Ashton (1876 1 Q.B.D. 314). What is that principle? It is in our opinion that anyone in occupation and control of something hung over a place, - (to this could equally well be added 'or attached to part of a building') - in which people may be expected lawfully to be, is bound to take reasonable care that it does not fall and injure them. This seems to us to be both law and justice; ..... it makes no difference whether the Plaintiff was on the highway ..... or in any other place where he had a right to be, and where people might be expected to be."

44. The fifth Defendant was undoubtedly negligent in allowing a structure of this nature to exist in the first place. The danger was obvious. Furthermore the fifth Defendant ought to have been aware of the weather warning that late afternoon/early evening. Mr Yeung said that the Management had a practice of informing of rainstorm warnings. Saddled with the knowledge of the existence of such a flimsy awning structure it ought to have conducted a patrol to ensure that it was closed down and stowed. That itself was negligent.

45. I ought to state at this stage that I find the fifth Defendant's claim that it exercised strict control over the form and nature of awnings on this estate wholly lacking in conviction, not simply on the basis of the evidence to which I have already referred but also in the light of the photographic evidence of the situation just less than a year later.

46. In a photograph of the shop frontages taken in May 1995, a slack and relatively loose, large coloured awning extends across the footway and walkway and is tied at its two outer corners to the branches or trunk of trees in the concrete trough (A-1). One can also see a smaller but similar slack or loose awning, shorter than the former with no obvious, outer form of attachment (B-1). It is agreed that one of these fronted the fourth defendant's leased premises. Two inferences are irresistible. Firstly, the Management Company did not enforce a consistent policy. Secondly they acquiesced in some rather "ad hoc" awnings of doubtful efficiency and safety. Both factors support, if extra support were needed, the conclusion that in relation to the fourth Defendant's awning the Management was prepared at best to tolerate it, at worst to be totally indifferent to its style, fixing and the hazard posed. On his own evidence Mr Leung seemed more interested in the nuisance or inconvenience which could be caused by the displays of fruit and vegetables extending beyond the shop frontage to the pavement and walkway.

47. In his written submissions Mr Sarony S C, for the fifth Defendant, seeks to rely on a number of cases in support of some propositions. I will deal with each submission in turn. Wong Lai Kai v. Incorporated Owners of Lok Fu Building, Yuen Long 2000 3 HKC p. 633 is readily distinguishable on the facts. It has no relevance to the facts of this case.

48. Although the Deed of Mutual Covenant governed the relationship between the owners and the Management Company, the latter assumed the obligations and the duty of care towards the public. It is not necessary for the Plaintiffs to rely upon or plead a breach of the Deed of Mutual Covenant. The Deed is evidence of the assumption of the duty of care by the fifth Defendant. Mr Sarony's point hereunder is not valid.

49. The Plaintiff's case is not based upon "pure omission" as Mr Sarony describes it. The evidence is quite clear that the fifth Defendant regarded itself as responsible for any such structures. It had a declared policy though, as I have found, it was not consistently followed. It acquiesced in the continuance of the awning, and it had given permission for it; it was obviously dangerous, it seemed not to have appreciated the danger, it was responsible for its existence. "Pure omission" is not sustainable as a description of the fifth Defendant's role.

50. The suggestion that there was a "latent defect" of which the fifth Defendant was unaware is not sustainable on the evidence. This was a flimsy structure vulnerable to collapse under ordinary circumstances. It is not possible to determine whether the guyrope(s) or stay(s) broke or simply became loose and detached in the weather conditions. That does not matter. Such was the form of the structure that strong winds would have dislodged the poles from their resting position and allowed them to have a flailing effect. This, as I have found, was entirely foreseeable; indeed, it was so obvious that it would not withstand moderate wind conditions that it should have been taken down, at the latest, when a wind threatened. It would not have taken freak weather conditions to bring about collapse or partial collapse of the structure.

51. The suggestion that because the poles and/or stays or guyropes were positioned on Government land i.e. the pavement and/or walkway, the fifth Defendants were relieved of any liability for structures attached to common parts is unsound in law and logic.

52. Mr Sarony's reference to Sellers LJ's judgment in Walsh v. Holst Co Ltd 1958 1 W.L.R. 800 does not assist. The facts are entirely different. In the light of the evidence and the facts which I have found the alleged "reasonable precautions" taken by the fifth Defendant have no relevance. In any event they were not "reasonable".

53. In my judgment the awning so obviously gave rise to a danger that it would be flying in the face of common sense to assert the contrary. It may well be that the type of injury which resulted was unusual, even not foreseeable i.e. the penetration of a man's chest by a bar or pole with fatal consequences, but I reject any argument that injury of some type, even fatal, was not foreseeable. It seems to me that to argue the contrary lacks any appreciation of the potential effect of a structure which becomes subject to the predictable forces of nature.

54. I do not need to consider the claim on the basis of nuisance and therefore do not propose to canvass the issue further other than to say that I do not consider the claim lies in nuisance.

The case against the Sixth Defendants

55. All owners are responsible for the common parts. These owners had, under the Deed of Mutual Covenant, contracted to appoint the Manager (the fifth Defendant) to manage the Estate. That included management of the common parts which themselves included the canopy to which the awning was fixed. This is a standard provision in the management of such estates.

56. Mr George Lam, on behalf of these unincorporated owners cites the pithy, uncontroversial statement of Lord Bridge in D.&.F. Estate Ltd v. Church Commissioners for England 1989 A.C. p. 177.

"...the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of his work."

57. The carrying out of management work is in my judgment, clearly a delegable duty. It is to be distinguished from the duty of an employer towards his employee.

58. Had the owners of the common parts adequately discharged their duty? In my view one need not look beyond the clause A1 in the Deed of Mutual Covenant and the evidence of Mr Leung who unequivocally set out that the Management Company in acting in the way he described, was, purportedly, discharging the delegated duty.

59. This is of course very much an academic exercise in this case. The fifth Defendants have agreed to indemnity the sixth Defendants in respect of any liability for damages and costs adjudged in this case. This extends to a dismissal of the fifth Defendant's indemnity/contribution proceedings against the sixth Defendants with costs. It is difficult to see how on the fifth Defendant's own evidence, and the documents, how any such contribution/proceedings could have been maintained in the first instance, let alone for the length of time which ensued.

60. I am satisfied that no liability rests with the sixth Defendants, they having discharged their duty.

Conclusion

61. The Plaintiff succeeds against both the fourth and fifth Defendants. I am equally satisfied that the first Defendant has no liability. She had no realisation of the significance of the documents which she signed. She thought that she was signing them merely to protect her sister's position. She did not realise that any liability would attach to her by her so doing. The fourth Defendant confirmed the generality of this and I am satisfied that he was using her for his own purposes, though he may have had some confused thinking about the sister's position. The sister was his original proposed partner in the venture.

62. There are contribution/indemnity proceedings between the fourth and fifth Defendants. Accordingly I must make a finding as to the respective proportion of their liabilities. In my judgment the fifth Defendant must bear the larger share of the responsibility. It was responsible for ensuring that the shop tenants complied with certain requirements. Through its servants or agents, it examined, or had the opportunity to examine the awning. It gave permission for it to be erected. On their own evidence they allowed it to continue in position. It posed an obvious danger. In my view they relieved the shop tenant, the fourth Defendant, of a degree of responsibility, which was a significant degree, by so doing. They had far more experience than he had. The photographic evidence of what they continued to allow to exist as awnings indicates their gross failure, as I find it to be, to discharge their duty as the Management company. In these circumstances, it is small wonder that the fourth Defendant had a reduced awareness of, or concern for the obvious hazards presented by this awning. The fourth Defendant is liable to the extent of one-third, and the fifth Defendant is liable to the extent of two-thirds. I make contribution orders accordingly between those two Defendants.

63. There will be judgment for the Plaintiff against the fourth and fifth Defendants with costs, and for damages to be assessed.

64. There will be judgment for the first Defendant with costs to be paid by the fifth Defendant. The fourth Defendant did not contend that the first Defendant was liable.

65. There will be judgment for the sixth Defendant with costs to be paid by the fifth Defendants, such costs to include the costs of the contribution/indemnity proceedings. I make this order out of an abundance of caution in case it is not already formally recorded.

66. It would not be right to conclude this judgment without expressing my recognition of the lucid and wholly valuable written submissions by Mr Albert Yau for the Plaintiff. He set out in a balanced and authoritative way the case in relation to all Defendants. He bore in mind the fact that the first and fourth Defendants were unrepresented and unable to make proper submissions themselves. He demonstrated commendable fairness in their regard. His was quite the best statement of all the issues and law that I have seen for a long time.

67. Likewise Mr George Lam for the sixth Defendants was economical, succinct and entirely to the point. This was also extremely helpful.

Interim Award of Damages

68. There is a substantial difference between the Plaintiff's claimed loss of earnings and that conceded by the 5th Defendant. However for the purposes of this I propose to take simply the figure conceded by the 5th Defendant reduced solely for this exercise to a dependency of $20,000 monthly which is, I readily agree, far too low on the basis of the Inland Revenue assessments. In so doing all the arguments remain at large.

69. The multiplier for the loss of dependency is 13 conceded by the 5th Defendant. The total figure under this head, on the basis which I have set out is $3,120,000.

70. The bereavement award is $70,000.

71. The funeral expenses are $185,000. There is clearly a loss of accumulation of wealth claim. All in all the value of this claim cannot be less than $5,000,000. This is therefore the interim award of damages which I order to be paid within 21 days by the 4th and 5th Defendants.