LO SUK CHUN v. YEUNG TAI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The plaintiff sues on behalf of the estate of her deceased son, Yip Kam-sing, who was killed during the course of his employment with the defendants on the 31st October 1982. He was 24 years old at the time. The Writ was issued on the 27th June 1984 and interlocutory judgment was entered on the 10th January 1987.

2. The plaintiff and Mr. Yeung Tai, one of the defendants, gave evidence. In addition thereto, Mr. Bell tendered an agreed bundle of documents.

3. The parties agreed funeral expenses of $5,000.00 and I award that sum as special damages. Similarly,  the conventional award of $20,000.00 for loss of expectation of life was agreed and I also award that sum by way of damages.

4. Finally, it was agreed that the multiplier should be 16. I concur with this agreement and accordingly adopt a multiplier of 16.

5. Thus, as a result of the very constructive approach to this assessment by both Counsel, the only outstanding issues for me to determine were the appropriate multiplicands for pre-and post-trial loss of earnings and the free balances for those periods.

6. Prior to his death Yip Kam-sing (the deceased) had worked for the defendants for about four years. Mr. Yeung variously described him as an assistant in masonary work and as 'basically a manual worker'. However, from a more detailed description of his duties, and from the work he was actually undertaking at the date of his death, I consider that he can properly be described as a middle ranking, semi-skilled worker within the defendants' workforce. This is further borne out by the wages structure of the defendants' company set out on page 11 of the agreed bundle of documents.

7. Page 7 of the agreed bundle of documents shows the deceased's income in the twelve months prior to his death. However, in my judgment, it would be wrong to simply average out the monthly earnings for that period in order to ascertain his income as at the date of his death, because at the end of July 1982 the deceased received an increase in his daily wage to what is described as $102.00 per unit of work, which Mr. Yeung explained was for 8 hours work. This, together with overtime, resulted in an average monthly income post July 1982 of $2,885.00.

8. The plaintiff was unsure as to precisely how many days a month the deceased worked, but stated that he occasionally worked on Sundays. Mr. Yeung, on the other hand, stated that the deceased worked on average 26 days a month.

9. No daily work sheets were tendered in evidence, so I propose to resolve this issue by adopting the approach suggested by Counsel, namely to divide the average monthly wage by the wage payable for each 'unit of work'. This results in an average figure of 28 working days per calendar month. I appreciate that there is a degree of arbitrariness in adopting this approach for the deceased's average income for the relevant period immediately prior to his death, includes an element of overtime, as well as Sunday working, but, in default of any other reliable evidence, it seems the only viable manner of resolving the issue.

10. I now turn to his post-trial loss of earnings. The plaintiff said that the deceased had advised her shortly before his death that he would be promoted in 'a few days'. Mr. Yeung disagreed. In essence he said that it would be wrong to assume that a concrete worker with 8-9 years experience would become a master and that if the deceased had been alive today, there was no certainty that he would have been so promoted. He pointed out that there are some workers of greater age and experience than the deceased would have been today,if he had not died, who have not risen to that rank.

11. There is nothing in the evidence before me to suggest that the deceased was an outstanding worker, although, in fairness, it is equally right to say that there is nothing to suggest that his performance was other than satisfactory.

12. Mr. Yeung appeared to me to be a very fair-minded man and I accept what he said. Hence, whilst I cannot entirely rule out the possibility that the deceased may have been promoted, I consider that the prospect is sufficiently remote not to take it into account in assessing; his post-trial loss. This being so, the only evidence I have before me is in assessing this head of loss is a bald assertion, in the agreed bundle of documents, that according to the Census and Statistics Department, the average daily wage of workers engaged in boatyards and shipyards in March 1986 was $126.00 per day and the defendants' wages list, page 11 of the agreed bundle, which shows the actual wages paid to their employees in August 1986.

13. So far as the return from the Census and Statistics Department is concerned, I find this to be couched in far too general terms to be of any real assistance. However, I find the defendants wages list to be most helpful. Mr. Yeung said, and again I accept what he said, that the deceased's experience and job description could be equated to that of Chong Ming-yau. Mr. Chong earned $117.00 per unit of work in August 1986. Any fringe benefits received by employees of the defendants are derisory and accordingly I propose to discount them for the purpose of this assessment. Thus I find that in assessing the post-trial loss, the multiplicand should be $117.00 x 28, i.e. $3,276.00, the income of the defendants' employees not having increased since August 1986.

14. As to the free balance, Mr. Ho submitted that I should adopt the conventional approach and assess it at 55%. Mr. Bell disagreed and submitted that I should assess it at 66%.

15. The plaintiff said that the deceased usually gave $2,000.00 for the support of his family and in cross-examination, agreed that his personal expenditure was $700.00. She also stated that the deceased would give her an additional $100.00 from time to time, but it became clear in cross-examination that such payments were so rare that they should not be taken into account in this assessment.

16. The plaintiff went on to say that the deceased was a frugal man, which given the contribution he made towards family expenses, could scarcely have been otherwise.

17. His heavy financial burden is further borne out by the fact that as at the date of his death the deceased had savings of less than $100.00.

18. In addition to the deceased's actual expenditure, Mr. Ho submitted that I should take into account the fact that there were seven people in the deceased's family unit and that the deceased, by way of board and lodging, derived some personal benefit from his contribution to the family exchequer. He suggested that in the particular circumstances of the deceased's family, the only viable method of calculating this benefit is to divide the total family income by seven. I agree with him. The total family income was $3,300.00 and accordingly I assess the deceased's personal benefit at $471.00.

19. Hence the deceased's total personal expenditure/benefit amounted to at least $1,171.00 per month.

20. I have already found that the deceased's average income, as at the date of his death, was $2,885.00. Thus the deceased's personal expenditure/benefit, expressed in percentage terms to the nearest percentage point was 40% leaving a free balance as at that date of 60%

21. However, this does not advance the matter as far as it may appear at first sight for Mr. Bell submitted that in assessing the loss of earnings from the date of death to the date of assessment, I should take the mean figure between the deceased's income as at the date of death and that as at the date of assessment.

22. I agree with him for the defendants' wages records suggest a gradual increase in wages over that period. Applying this formula, one arrives at a mean income during the pre-assessment period of $3,080.00. On the face of it, this could have the effect of increasing the percentage of the free balance but this is not so for upon closer examination it becomes clear that at this point one enters the realms of speculation rather than the application of mathematical formula based on a reasonably sound foundation; a fact which becomes even more accentuated when one seeks to establish the post-trial free balance.

23. I say this for the following reasons, namely:-

24. In short, there is evidence to support the view, and nothing to negate it, that the deceased would have expended a greater percentage of his income on himself and less on his family as time went by. Just what that percentage would have been, I simply cannot say. Hence, whilst one can calculate, with reasonable certainty, the free balance, as at the date of his death, thereafter one cannot save that it must have been less than 60%.   Thus, I have concluded that I have no option but to adopt the conventional approach of 55% for both pre- and post-trial loss.

25. Accordingly, I assess damages as follows:-

Interest

26. There will be interest on the award for loss of expectation of life at 2% from the date of issue of the writ. The interest on the funeral expenses and the pre-trial damages will run at 3.75% from the date of death. In both cases, the interest will run to the date of the hearing.

Costs

27. At the conclusion of the hearing, Counsel requested me to make an order nisi as to the Plaintiff's costs. I do so with a certificate for Counsel and finally I order that the plaintiff's costs be taxed in accordance with Legal Aid Regulations.