CHOW KAM HO v. GAMMON CONSTRUCTION LTD.

HCPI No. 863/99

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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Background

1. The plaintiff, the young widow of the deceased, Lai Chi Keung (the deceased) and the administratrix of his estate, brought suit on behalf of his estate and his dependants to recover damages under the Fatal Accidents Ordinance, Cap. 22 and the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23. The deceased was fatally injured on 14 January 1997 when he was struck and suffocated by 2.5 tons of liquid concrete that were accidentally discharged from a height as he worked at a building site, of which the defendant was the principal contractor. He died later on the same day. At the time, the deceased, able-bodied, apparently of good health and aged 29, was employed by the defendant as concretor. Letters of Administration were issued in June 1999. The annexed provisional schedule of the deceased's estate in respect of which estate duty was exempted, demonstrated that he had died with no more than about $55 to his name. Judgment on full liability was entered on 28 February 2000. Credit will be given for the sum of $1,676,596.27, being compensation received following employees' compensation proceedings.

2. Taken broadly, at issue were the level of wages of the deceased at trial, the probable duration of his working life but for his premature demise, the quantum of family expenses, the loss of accumulation of wealth, the appropriateness of an award for pain, suffering and loss of amenities, and the ascertainment of the dependants and the length of their dependency, where appropriate.

The deceased's earnings at death

3. There can be no dispute that the deceased was engaged as concretor earning about $19,390 p.m. gross. He had been in the defendant's employ for some 8 years prior to the accident and every indication suggested the probability of his continued employment with the defendant, but for his untimely death at the age of 29. His duties were as ganger in charge of concrete pouring work at the site according to the Fatal Accident Report. His job description, therefore, most closely fitted that of a concretor, rather than erector despite the stated occupation in his employment contract, his wage slips and Form 2. Form 2 gave his activity as 'concreting'. On average he worked a 26 day month.

The deceased's income at trial

4. This issue attracted considerable argument. It was the plaintiff's position that the deceased's earning potential should best be assessed by reference to the Government Statistics on construction workers employed in major government construction projects (the Average Wage Statistics). In light of the deceased's actual occupation, the average daily wages for concretor were adopted. In January 1997, the average daily wage of a concretor from employers' returns was $776.20. Working 26 days each month as the hard-working deceased clearly did, would produce a monthly income of $20,181.20. This figure closely approximates what the deceased was actually earning at the time, lending some support, in my view, that he was effectively a concretor at all material times.

5. Had the deceased survived, the Average Wage Statistics suggest that he would have been able to earn in the region of $964.20 daily or $25,069 (rounded down from $25,069.20) per month gross as evidenced by the data for December 1999. It was agreed that liability for tax would have to be factored in. In the Revised Statement of Damages which the plaintiff is plainly entitled to use for the purpose of assessment, Mr. Nasir, her counsel, very helpfully set out in the annexed Schedule 1, his computation for tax. I accept his calculation that the deceased's liability for income tax would probably have amounted to $496 in the pre-trial period of 3 years and 8 months (3.67 years). On a likely salary of $25,069 p.m., his annual gross salary would have been $300,828. His net monthly earnings would, therefore, have been ($300,828 - $496/12 months) $25,027.66 or $25,028. This I wholly accept. The median pre-trial monthly income of the deceased I assess to be $22,209 ($19,390 + $25,028/2).

6. Mr. Sakhrani, counsel for the defence, sought to rely on the earnings of two fellow workers of the deceased. Nothing was known about them beyond their employment numbers and earnings. Those data compiled by the defendant were payroll information for the years 1997 to 1999. It was contended that they furnished the best evidence of what the deceased might have been able to earn at trial and should accordingly be adopted as comparables. If that were correct, the data (which were adduced only shortly before the assessment) would actually suggest a fall in earnings over the pre-trial period.

7. The payroll evidence was entirely unhelpful in my considered opinion as no breakdown of job titles, duties and other pertinent information have been included. I have no hesitation is finding that the deceased was employed as a concretor, not an erector as seems to have been suggested, when he met his death. The Average Wage Statistics offer the best approach in the circumstances of the case.

Common family expenses

8. The plaintiff in adopting her witness statement as evidence, testified to the monthly household expenditure as well as to the deceased's modest lifestyle and spending habit following the birth of their 2nd son. Hitherto, she had described him as having been a bit more extravagant. Although the deceased had enjoyed drinking beer, mahjong, betting on horses and smoking, he did not overly indulge in these activities. His respect for and commitment to the young family and elderly parents cannot be gainsaid. His was plainly a solid marriage.

9. At the time of his death, the deceased's own monthly expenses amounted to about $7000. On a daily basis, he would spend on average $70 on travelling to and from work, $40 on cigarettes, $55 on meals taken away from home, $25 on beer, and $5 on newspapers. On some days with overtime or social gatherings with his own friends, he ate all meals outside. He would also purchase his own clothing and take the family to dim sum lunches on his days off. Such lunches occurred two to three times a month at the cost of between $100 to $200 each time. There was a dearth of information on the monthly amount he spent on gambling and clothing. In my view, it was unlikely to have been significant, given his income and financial constraints.

10. The common family expenses at the date of the accident were agreed at $10,022 p.m. They consisted of utility and mortgage charges, medical expenses, food and the children's education related expenditure. Full particulars are set out in paragraph 10 of the Revised Statement of Damages and no useful purpose will be served recounting them here. The plaintiff suggested that these expenses should be adjusted upwards by some 39% when assessing the level of common expenses at trial to reflect the increasing needs of the two sons, particularly for school and tutorial fees, books, uniforms and stationery. Some of these latter expenses have been covered by receipts. In her witness statement, the plaintiff claimed a new item of entertainment and holiday expenses. This addition shall be totally discounted in light of her admission under cross-examination that the family lifestyle had remained largely unchanged. Besides, it would seem totally incongruous for this family on monthly welfare assistance until the ECC payments were received to have been spending as much as $3,000 monthly on entertainment. There was also an element of duplication in her claim for food at $4,000 pm and for entertainment. Both items apparently, she admitted, included the cost of occasionally eating out. Assessing common family expenses not being an exact science, I am prepared to allow some increase between death and trial. It stands to reason with the growing requirements of the sons. Where once the deceased would have taken the family out for meals, that privilege or task has fallen to the plaintiff. On her evidence, outgoings in respect of utility and mortgage repayments have remained by and large static. Medical expenses went up she said by $2,000 each month to $3,000. I am prepared to allow a total of $1,200 per month for medical consultation or about 5 visits a month at $240 per visit according to the plaintiff. For school fees, tutorials, uniform and clothing that are not fully substantiated by documentation, a sum of $2,000 would be reasonable. She has urged a higher figure of $4,190 instead. Previously, an amount of only $640 had been claimed when calculating common family expenses at death. I am of course mindful that this much lower quantum had not included stationery, uniform and spectacle expenses.

11. Common family expenses at trial, I assess at $12,760. They are made up as follows:

Electricity	$135
Water	$83
Rates	$264
Telephone	$200
Food	$3,600 (including 3 meals out per month as when the deceased was alive)
Mortgage	$4,320
Gas	$158
Medical	$2,000
School fees, tutorials, stationery, clothes,uniform, spectacles	$2,000
Total:	$12,760

12. The median common expenses over the pre-trial period are, therefore, $11,391 ($10,022 + $12,760/2).

The dependency of the deceased's parents

13. Their dependency is denied. The deceased's father, Lai Mui Tai (the father) aged 58 at the time of the accident, was when the assessment came on, employed as 'crew' by the Floata group of companies. He earned between $11,000 and $12,000 p.m. and could expect a modest pension on retirement. He said he was in business in the past and had accumulated sufficient savings to largely fund the deceased's wedding and the initial down payments and fitting-out costs on the deceased's newly acquired home. He said he lent his late son $250,000 when he purchased his flat. An unidentified portion of the loan he reportedly borrowed from friends in order to assist the deceased. It was his evidence that the deceased had not repaid him to date. The evidence of the plaintiff was that she would like to see this indebtedness discharged in the future as she now saw it as her responsibility.

14. The father asserted that his son used to regularly give him and his wife $2,000 p.m. as living expenses out of filial piety and devotion. The deceased's mother, Lo Ying Mui aged 51 when his son died (the mother), offered corroboration in this regard. She is a housewife residing with her husband in their own fully paid up home. The plaintiff was aware that the deceased did contribute to his parents, but admitted that such contribution was always handed over in her absence. Under cross-examination, she admitted that the deceased sometimes did not inform her how much he gave his parents, but insisted that he would do so 'once every one month odd'.

15. I have little difficulty in concluding that the parents were dependants of the deceased even though they were in every respect financially independent with their own accommodation and income. The real issue was the extent of that dependency.

16. The evidence touching upon the deceased's contribution to his parents lacked precision and detail, which was not surprising considering that he never consulted the plaintiff about it. That the deceased gave money to his parents occasionally was certain. I am, however, far from persuaded that the contribution was regular and in monthly amounts of $2,000 as claimed on the body of evidence. The deceased who died virtually impecunious from the probate papers (leaving aside his share of the equity on the Cheung Chau family home), would have found it difficult to regularly fund his parents as alleged on his earnings in light of all his financial commitments and own needs. I would assess such payments to have been between $1,000 and $2,000 each month and will take the average of $1,500 pm as the parents' total dependency at the time of death.

Pre-trial loss of dependency of the plaintiff, and the deceased's sons

17. At one point in her evidence, the plaintiff suggested that aside from the sum of $7,000 p.m. the deceased gave for housekeeping, he also contributed an additional amount of $9,000 p.m. to cover her own expenses and the medical and education needs of the sons. Under cross-examination, she had to concede that this was not so when confronted with what she had informed the social welfare officer.

18. After deducting from the deceased's income the family outgoings and the contribution to the parents, the balance is:

$22,209 (median monthly income) - $11,391 (median common family expenses) - $1,500 (parent's monthly dependency) = $9,318

19. One third of the balance will be attributed to the personal use of the deceased, one third to the plaintiff and the remaining one third for the two sons in equal shares. A third share of the balance amounts to $3,106. The sons' shares will, therefore, be $1,553 each, being one sixth of the balance.

20. The common family expenses at death were agreed at $10,022. This will be apportioned similarly with one third each to the deceased and the plaintiff and the balance equally shared by the boys. A third share works out at $3,340.66 whilst the son's one sixth share each amounts to $1,670.33.

21. I assess pre-trial dependency as follows:

The plaintiff
$3,106 + $3,340.66 x 12 months x 3.67 years	$283,910.90
Tsz Ho
$1,553 + $1,670.33 x 12 months x 3.67 years	$141,955.45
Tsz Fung
$1,553 + $1,670.33 x 12 months x 3.67 years	$141,955.45

The parents' pre-trial dependency

22. Having assessed their dependency at $1,500 pm to be shared equally between them, their dependency is calculated thus:

Lai Mui Tau
$750 x 12 x 3.67 years	$33,030
Lo Ying Mui
$750 x 12 x 3.67 years	$33,030

Post trial dependency of the plaintiff and the sons

23. The plaintiff abandoned her contention that a multiplier of 17 was appropriate. Although the deceased had enjoyed good health and was industrious, the very physical demands of his employment might well have made it difficult for him to continue in manual labour beyond the age of 60. He was about 2 months shy of his 30th birthday when he died. I consider that a multiplier of 15 would be fair.

24. The notional net income of the deceased at trial has previously been quantified at $25,028. Common family expenses came to $12,760. I shall assume that parental contribution would have remained unchanged in quantum. The balance income at trial would have been:

$25,028 - $12,760 - $1,500 = $10,768

25. Upon the basis that the deceased, plaintiff and children would have shared this balance in the same proportion as previously adopted, their respective shares would have been $3,589.33 each for the deceased and the plaintiff, being their one third shares, and $1,794.66 each for the sons, being their one sixth shares.

26. The plaintiff's share of the family expenses at trial would be $4,253.33 ($12,760/3) and the sons would each be apportioned $2,126.66, being one sixth of the family expenses.

27. The plaintiff's and the children's post trial dependency is assessed using a global multiplier of 15 thus:

The plaintiff
$3,589.33 + $4,253.33 x 12 x 11.33 (15 - 3.67 years)	$1,066,288.05
Tsz Ho
$1,794.66 + $2,126.66 x 12 x 11.33	$533,142.66
Tsz Fung
$1,794.66 + $2,126.66 x 12 x 11.33	$533,142.66

The parents' post trial dependency

28. The deceased's father and mother were respectively aged 58 and 51 at his death. I shall adopt the same multiplicand of $750 for each of them. A multiplier of 12 for the mother and a lower one of 6 for the father would seem to be fair and just in the circumstances. Their loss under this head of claim I assess as follows:

Lai Mui Tai
$750 x 12 x 2.33 (6 - 3.67 years)	$20,970
Lo Ying Mui
$750 x 12 x 8.33 (12 - 3.67 years)	$74,970

Bereavement

29. Damages have been agreed at $70,000.

LARCO

30. Funeral expenses have equally been agreed at $90,000.

Loss of accumulation of wealth

31. The matrimonial home in Cheung Chau was purchased in February 1996 for $600,000. The acquisition was funded with a 15-year mortgage and a substantial loan from the deceased's father. The mortgage would have been cleared by January 2011. Thereafter it was said that the money freed up would have become available for saving till the end of his normal working life. Much the same logic was adopted to suggest further available funds for accumulation on the termination of the dependency of the sons and parents.

32. As Mr. Sakhrani pertinently submitted, no award would be appropriate unless the evidence demonstrated an obvious pattern of savings from which it might be inferred a likelihood of future savings, or if there was none, a probability of future accumulation of wealth: Kwan Lai Kuen v National Insurance Co. Ltd. [1998] 1 HKC 98. The evidence unambiguously indicated that the deceased has had to financially rely on his parents in such areas as his own wedding and the initial outlay for and decoration of the family home. These outstanding debts have yet to be repaid according to the plaintiff. The deceased's own spending habit was necessarily circumscribed by what remained to him after taking care of his family and parents. It seems probable that an ability to accumulate wealth would not be achievable for many years into the future, and most certainly not before the termination of the parents' dependency, the independence of the sons and the redemption of the family home. Even then, with less constraint on his finances, a likely improvement in lifestyle would have meant higher living costs. All that notwithstanding, I have no difficulty in holding that a probability of future accumulation of savings exists and cannot be ignored. I am prepared to award a sum of $100,000 under this head. I so order.

Pain, suffering and loss of amenities

33 Death in this case ensued within about 2 1/2 hours of the mishap. According to the medical evidence, the deceased was semi-comatose on admission, having been diagnosed with Glasgow Coma Scale 3/15. His fast deteriorating condition was fair and he was only able to respond to commands. There was no evidence that he was fully cognizant of his condition and injuries following his admission to Tang Siu Kin Hospital. There was, however, evidence from a co-worker of the deceased, Mr. Lai Hon-wah (as taken from the Coroner's Inquest), that the deceased was distressed and had spoken to him of experiencing great pain en route to hospital. I am disposed to awarding a sum of $50,000 for pain and suffering endured by the deceased, albeit for a relatively short duration. His awareness of pain had not been as comprehensive as the suffering of the victim in Lam Po Yuk & anr v Mercury Shipping Co. Ltd. [1997] 3 HKC 655, but nonetheless should be accorded recognition by way of a small award.

Conclusion

34. In summary, the total sum awarded with breakdown appears below:

Pre-trial dependency of the plaintiff	$283,910.90
Pre-trial dependency of Tsz Ho	$141,955.45
Pre-trial dependency of Tsz Fung	$141,955.45
Pre-trial dependency of Lai Mui Tai	$33,030
Pre-trial dependency of Lo Ying Mui	$33,030
Funeral expenses	$90,000
Bereavement	$70,000
PSLA	$50,000
Loss of accumulation of wealth	$100,000
Post-trial dependency of the plaintiff	$1,066,288.05
Post-trial dependency of Tsz Ho	$533,142.66
Post-trial dependency of Tsz Fung	$533,142.66
Post-trial dependency of Lai Mui Tai	$20,970
Post-trial dependency of Lo Ying Mui	$74,970
Subtotal	$3,172,395.17
Less ECC payments	$1,676,596.27
Total pre-interest	$1,495,798.90

35. There will be interest on the awards for bereavement and pain and suffering at 2% p.a. from the date of the writ to the date of assessment and on the pre-assessment loss of dependency and funeral expenses at the rate of 5.99% from the date of the accident to the date of assessment.

36. The plaintiff shall also be entitled to the costs of the assessment including the costs for the hearing for directions on apportionment of damages, such costs to be taxed on a common fund basis, if not agreed. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. Counsel certificate to issue.