LO LAI HOI AND ANOTHER v. WONG HAU ON AND ANOTHER

1988, No. A5590

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The deceased, one Wong Yin Ping, was killed on 31st May, 1986 while she was travelling as a passenger in a vehicle, owned by the 2nd Defendant and driven by the 1st Defendant, along Chi Kok Road when the said vehicle collided into a stationary lorry. The 1st Defendant was convicted of, inter alia, reckless driving causing death, driving without a driving licence and using a vehicle without third party insurance. The Plaintiff, mother of the deceased, brought these proceedings in August, 1988. The insurer's, Grand Union Motor Insurance Company Limited, application to join as the 3rd Defendant in these proceedings was adjourned sine die in October 1988 but was never restored. Interlocutory judgments for damages to be assessed were separately entered for failure of a notice of intention to defend against both Defendants prior to the hearing date for the insurer's said summons.

2. The assessment came on for hearing on 27th February, 1989 but had to be adjourned part-heard due to the refusal of the deceased's colleague, one Chiu Fung King (P.W.2), to attend court to give evidence despite being duly served with a subpeona. The hearing was resumed on 28th April, 1989 when the Plaintiff called 2 witnesses, and the Defendants none. Both Defendants act in person.

LARCO Claim

3. The deceased was a waitress at the Chinese Palace Night Club Limited at the time of her death earning about $2,400.00 a month, i.e. $1,700.00 basic salary plus about $700.00 tips. According to P.W.2, a waitress at that establishment is now earning about $3,300.00 to $3,4.00.00 a month. The deceased's father is a casual worker of the Cheung Sha Wan Abattoir while the Plaintiff is a hawker earning about $3,000.00 and $2,300.00 a month respectively. The Plaintiff said the average monthly total expenditure would be $4,600.00 though the figures she gave only added up to $4,308. She said the deceased would contribute $1,500.00 to the family pool, while only about $300.00 in the total family expenditure ought to be attributed to the deceased as she would only have a meal at home. The deceased had two younger brothers, both were and are students, living with her at the time of her death. The elder of the two is now attending university in Canada, having left Hong Kong two years ago.

4. Mr. Leong for the Plaintiff asked for the revised usual award of $30,000.00 for loss of expectation of life. He also submitted the claims for funeral expenses and damage to clothings in sums of $5,090.00 and $500.00 respectively are reasonable. The funeral expenses are documented. I find these claims to be reasonable and award the same.

5. Despite the fact that in Form 9A of the Social Welfare Department and a letter dated 6th July, 1987, the deceased's wages were stated by her employer as being $2,300.00 and $1,700.00 respectively; I accent the evidence of the witness and find her wages at the time of her death to be $2,400.00 a month.

6. For the pre-trial loss, Mr. Leong submitted that the sum of $3,350.00 (being the average of $3,300.00 and $3,400.00) should be adopted as the would-be earnings at the date of assessment. The median figure mould then be $2,875.00 which I accent. The deceased kept $900.00 for her own use and contributed $1,500.00 to the family. The deceased's share in the family expenditure relating to water, electricity, rental and telephone amounted to $161.60 ($120.00 + $640.00 + $48.00 ÷ 5). $4.00 per day ($120.00 per month) for breakfast for the deceased would be reasonable. In the premises, I accept the Plaintiff's evidence that the deceased's share in the family expenditure ought to be $300.00 a month. Mr. Leong submitted that a 10% savings is reasonable. No evidence at all was adduced to establish she had any sayings. The deceased was 19 at the time of her death. She had her meals, apart from breakfast, not at home. There is no evidence that her meals were provided by the night club though it is conceivable that dinners might have been provided by the night club. She only bad, on the average, about $30. 00 for personal expenses a day. I accept that it is likely the deceased would have contributed towards Wong Kam Wing's education in Canada had she not died. In view of her heavy financial commitments towards the family, it is unlikely that the deceased would be able to have any savings; in particular for the period prior to the completion of Wong Kan Wing's overseas education. He is now in the first year of his university education. The special facts of this case would take it outside the ordinary situation as envisaged by the former Chief Justice in Yeung Wing v. V.S.L. Engineers (Hong Kong) Ltd. [1981] HKLR 130, when he found 10% to be the proper conventional figure for savings (at page 138).

7. In view of the aforesaid matters, I am not prepared to adopt the "dependency plus notional savings" approach for the free-balance for the lost years claim as suggested by Mr. Leong; i.e. the alternative approach approved by the former Chief Justice in Wong Sai-chuen, deceased v. Tam Mei-chun [1983] HKLR 331 at 339. I shall adopt the formula used in Gammell v. Wilson [1981] 2 WLR 248 as approved by the Court of Appeal in the same case of Wong Sai-chuen, deceased, supra at page 338 i.e. taking the net income (after tax) less the deceased's own personal expenses (exclusive of contributions to family and notional savings).

8. On the evidence, I find the deceased to have spent on herself the whole amount of $900.00 she was left with after contributing $1,500.00 to the family pool. There is unlikely to be any tax liability. In the premises, the pre-assessment free-balance would be $1,200.00 per month ($2,400.00 - $900.00 - $300.00), or 50%. The pre-assessment loss would be $50,312.50 ($2,875.00 x 50% x 35 months).

9. Mr. Leong submitted a multiplier of 17 is appropriate, which I agree. Thus, post-assessment loss would be $283,075.00 ($3,350.00 x 50% x 169 months).

FAO Claim

10. Mr. Leong submitted that as the deceased's parents earn a total of 15,300.00 which is more than the total family expenses, the whole of the deceased's contribution ought to go towards maintaining the brother in Canada. Evidence was called to establish that prior to her death, the deceased had indicated that she would support her brother's overseas education. The cost of his Canadian education amounted to $100,000.00 and $150,000.00 for 1987/88 and 1988/89 respectively. The Plaintiff alleged the deceased should be contributing $3,000.00 to $4,000.00 per month to the family now had she not died, though P.W.2's evidence was that her salary is likely to be $3,300.00 to $3,400.00 only.

11. The Plaintiff is the administratrix of the deceased's estate, and there is no suggestion of the existence of a will. In the premises, Wong Kam Wing would not be a beneficiary under the deceased's intestacy. There is, thus, no justification for reducing his claim for dependency under FAO by the damages awarded under LARCO. It has been accepted by the learned editor to McGregor on Damages, 15th edition, at page 1019, paragraph 1604, that in England the decision of the House of Lords in Gammell v. Wilson, supra, to permit the estate to recover for prospective earnings was to make possible double recovery against the tortfeasor if the class of persons entitled under the estate differ form the class of persons constituting the deceased's dependants. The former Chief Justice had observed at page 342 of the Wong Sai-chuen, deceased case:-

"This achieves, perhaps, fairness to the individual dependants. But it can work injustice to defendants, who may find themselves obliged to "pay twice" because of the operation of the deceased's will. The amount of damages which they must meet will thus depend upon circumstances which are wholly unconnected with the accident.

I do not wish to decide the point, in the absence of full argument on both sides. I confine myself to saying that it seems to me, though this is obiter, that principle requires that an FAO award to an individual should be reduced only to the extent which that dependant himself benefits from the LARCO award .....".

12. As the deceased died in May 1986, the new s.20(2) (b) (iii) of The Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, bringing an end to such unjust double recovery for death after 1st November 1986 has no application to the present case. There will be no merger of Wong Kam Wing's dependency under the old law.

13. However, I also find that there is no justification to treat the whole of the deceased's contribution to the family pool as solely for his support. The deceased's net contribution (after deducting her own expenses) to the family pool was $1,200.00. For May 1986 to August 1987, I will adopt a dependency of $300.00 ($1,200.00 ÷ 4). For his period in Canada, it is likely the deceased would have contributed an extra amount towards his overseas education. The deceased would at least require an average of $1,100.00 for her own personal expenses for this period (i.e. September 1987 until the completion of his overseas education which is likely to be in 1991). I will adopt the sum of $1,500.00 to be the deceased's contribution for the family in Hong Kong i.e. exclusive of Wong Kam Wing. I shall attribute the balance i.e. $750.00 to be solely for the benefit of Wong Kam Wing.

14. I find Mr. Leong's suggested multiplier of 5 to be reasonable and shall adopt the same. In the premises, the total dependency of Wong Kam Wing would be $37,800.00:-

(a) May 1986 to August 1987 at $300.00 per month	$4,800.00
(b) September 1987 to April 1989 as pre-assessment loss at $750.00 per month	$15,000.00
(c) My 1989 to April 1991 as post-assessment loss at $750.00 per month	$18,000.00
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	$37,800.00
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15. No claim for dependency was made for the other younger brother and no award is made.

16. The Plaintiff is thus awarded a total sum of:-

(a) Loss of expectation of life	$30,000.00
(b) Funeral expenses	$5,090.00
(c) Damaged clothing	$500.00
(d) Pre-assessment lost years	$50,312.50
(e) Post-assessment lost years	$283,075.00
(f) Pre-assessment dependency of Wong Kam Wing	$19,800.00
(g) Post-assessment dependency of Wong Kam Wing	$18,000.00
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	$406,777.50
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17. There will be interest at the rate of 2% per annum form the date of writ to the date of assessment on the sum of $30,000.00 for loss of expectation of life. Interest at the rate of 4% per annum form the date of death of death to the date of assessment will run on the sum of $70,202.50 ($5,090.00+$500.00+$50,312.50+$19,800.00). There will be an order nisi for costs of the assessment to the Plaintiff with certificate for counsel.

18. Dated this 17th day of May, 1989