CHAN LAI FONG AND ANOTHER v. CHUNG KIN WA AND ANOTHER

HCPI 199/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 199 OF 2000

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J U D G M E N T

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1. This case comes before the court for assessment of damages following the entry of interlocutory judgment by consent between the parties on 8 October 2001.

2. At the time of his death on 15 July 1998, the deceased was a 39 year old formworker employed by the 1st Defendant, a subcontractor of the 2nd Defendant responsible for the erection of multi-storey married quarters for officers of the Correctional Services Department in Stanley, Hong Kong. The deceased fell to his death from the 9th floor of a block under construction while engaged in the erection of formwork.

3. His family have already received Employees Compensation in the sum of $1,613,782.80 pursuant to a judgment of Judge Yung on 6 October 1999.

4. The deceased, who was the sole breadwinner of the family, left a 37 year old widow, Madam Chan Lai Fong ("Madam Chan"), three daughters, Shek On Yu, aged 10, Shek Ka Ki, aged 8 and Shek Lok Yee, aged 4, as well as elderly parents Shek Shin Hing and Chan Wai King, aged 73 and 74 respectively, who live in China.

5. The amount of $150,000.00 claimed in respect of bereavement is agreed.

6. The deceased's parents are still living and are in apparent good health.

7. It is agreed between the parties that at the time of his death the deceased's average monthly income was $40,410.00.

8. It is further agreed that the appropriate multiplier to be adopted in respect of the deceased's future working life is 13.

9. In the Revised Statement of Damages it is alleged that the monthly expenditure of the family was $22,500.00 per month which if divided equally between members of the family would result in a dependency on the part of each member of the family of $4,300.00 per month. In addition each daughter had an additional monthly dependency of $1,167.00 in respect of school fees, pocket money and books and stationery.

10. The resulting dependencies, namely $4,300.00 on the part of Madam Chan and $5,467.00 on the part of each of the three daughters is admitted (see paragraph 4 of the Answer to the Revised Statement of Damages). Indeed, on the then assumed date of trial of 14 January 2001, it was admitted that the dependencies would have continued at that level until the date of trial (see paragraph 5 of the Answer to the Revised Statement of Damages).

11. It is further agreed on the basis that the deceased had visited his parents in China four times a year and on each occasion had given them $4,000.00, that the monthly dependency of each of the parents was $666.67 (i.e. $4,000.00 x 4 ÷ 12 ÷ 2).

Loss of pre-trial dependency

12. Mr Chik for the Defendants has not disputed the Plaintiffs' claim that the level of dependency of Madam Chan and her daughters at the time of the deceased's death would have continued during the pre-trial period, even though the trial took place later than anticipated.

The pre-trial loss of dependencies are therefore:

(a) Madam Chan	$4,300.00 x 45 =	$193,500.00
(b) On Yu	$5,466.67 x 45 =	$246,000.15
(c) Ka Ki	$5,466.67 x 45 =	$246,000.15
(d) Lok Yee	$5,466.67 x 45 =	$246,000.15
(e) Father	$666.67 x 45 =	$30,000.15
(f) Mother	$666.67 x 45 =	$30,000.15
	Total:	991,500.75

13. Although the deceased's average monthly earnings on the job on which he was employed at the time of his death were agreed ($40,410.00), his average monthly earnings while working on other projects during that period were not agreed, nor were his likely monthly earnings thereafter if he had lived. These earning have a bearing on the loss of post trial dependency of his family and on his ability to save which has an immediate bearing on the claim of the estate to loss of his accumulated wealth if he had lived out his normal lifespan.

14. At the time of his death the deceased's daily earnings were $1,500.00 per day (see the Form 2 submitted to the Labour Department). He was effectively working 28 days each month on that project. His daily wage was therefore 18% more than the $1,273.50 which is said to be the average daily wage of carpenters and joiners engaged in government building and construction projects in the figures obtained from the Census and Statistics Department provided to the Court. This difference can be accounted for by the deceased's long experience in the business and the fact that he was regarded as a "Master". His wife's evidence suggests that in the normal course of events he would not have worked 28 days a month. He would usually take 1 day off each week and there would also be days when he would have been unable to work because of rain. He would occasionally visit China for 2 or 3 days. A reasonable assumption is therefore that his average earnings per month on jobs in general at around of time of his death would have been $36,000.00 (i.e. $1,500.00 per day x 24 days).

15. It would have been on the basis of these earnings that he would have been able to meet the monthly expenditure of the household ($21,500.00), his children's schooling ($3,500.00) and his contribution to his parents ($1,333.00) (i.e. a total of $26,333.00 per month).

16. Madam Chan's evidence was that when the deceased was paid he would keep some money for his personal use and leave the remainder in the drawer of the cabinet in their bedroom. It was out of this money that she was able to save after meeting the families' normal expenditure. She said that he would give her $20,000.00 - $30,000.00 per month but sometimes more.

Loss of accumulation of wealth

17. If Madam Chan was indeed able to save $10,000.00 a month at the time of the accident it can only have been on the basis that with his unusually large earnings from the current project, he was able to give her in excess of $36,000.00 retaining the balance of slightly less than $6,000.00 for his own expenses.

18. That level of savings would not have been possible had he been giving her $30,000.00 out of earnings of $36,000.00 odd from which she had to use $26,333.00 on family expenditure. A usual level of savings of $3,500.00 per month would have been a more realistic estimate.

19. That the deceased and Madam Chan had been able to make relatively substantial savings in the previous 13 years of their married life was not disputed. Madam Chan's evidence was that the value of the stock held by them at the time of the deceased's death amounted to about $300,000.00. They had also been able to spend $120,000.00 from their savings for the benefit of Madam Chan's late brother and use $130,000.00 to redecorate their flat.

20. It is reasonable to assume that the deceased's earnings would have been hit by the current recession. Although he was skilled and hard working it is most unlikely that he would not have been affected. I consider that the figures proposed by Mr Chan in this regard are reasonable.

21. On the basis of the figures provided by the Census and Statistics Department to which I had been referred which show a decrease in the average daily wages of such workers of 7.61% to $1,176.60 per day and assuming that the deceased because of his skills was still capable of earning 18% more than the average, he would have been earning $1,388.00 per day. Assuming a reduction of working days to an average of 22 days per month he would have been earning approximately HK$30,536.00 per month ($1,388.00 x 22).

22. Such earnings would not have enabled the deceased to continue to meet his previous family expenses of $26,333.00 and retain the same amount (slightly less than $6,000.00) for his personal use and make savings.

23. I find that it is likely that the first item to be hit by his reduced salary would had been savings and the last to be reduced would be the general family expenditure including school fees and his contribution to his parents. I consider it unlikely by the date of the trial he would have been able to continue making savings. Although there were items in the $21,500.00 family expenses which could be reduced (such as meals outside), I also consider that those items would be offset by increased expenditure on the deceased's 3 daughters particularly as they entered their secondary school and teenage years.

Pre trial loss of accumulation of wealth

24. It has been agreed that the formwork at the site was completed in the latter half of November 1998 (i.e. 4 months after the deceased died). I assume that he would have been employed during that period and capable of continuing to save $10,000.00 per month for these 4 months. There would therefore have been a loss of wealth of $40,000.00 in respect of this period.

25. For the remaining 41 months before trial, I consider that average monthly savings of $3,500.00 per month would have dwindled to nothing.

26. Assuming a gradual decline over the post accident period, the pre-trial loss of accumulation of wealth would be $3,500.00 x 41 x 50% = $71,750.00

27. The pre-trial loss of wealth would therefore have been $40,000.00 + $71,750.00 = $111,750.00

Post trial loss of dependency

28. For the reasons I have given I find that the post trial dependencies are likely to have remained the same. In view of the agreed multipler of 13, I find the future loss of dependencies is as follows:

(a) Madam Chan Lai Fong (aged 41)
$4,300.00 x 111 months = $477,300.00
(b) Shek On Yu (aged 14)
$5,467.00 x 36 months = $196,812.00
(c) Shek Ka Ki (aged 11)
$5,467.00 x 72 months = $393,624.00
(d) Shek Lok Yee (aged 8)
$5,467.00 x 108 months = $590,436.00
(e) Shek Shin Hing (aged 44)
$666.67 x 24 months = $16,000.00
(f) Chan Wan King (aged 78)
$666.67 x 24 months = $16,000.00
	Total $1,690,172.00 ==========

Post trial loss of accumulation of wealth

29. In my view the deceased and Madam Chan would have been able to resume saving and increase those savings as the deceased's parents and their daughters cease to be dependent on him.

30. I consider it unlikely that the deceased would have been able to make any savings for the next 24 months.

31. Thereafter I consider it that reasonable to suppose that his estate would have benefited by half the sum saved by the deceased not having to support each dependent from the time they ceased to be dependent. I have adopted 50% of the sum saved to take into account a natural desire to improve the quality of the lives on the part the deceased and Madam Chan as they got older and the fact that the deceased's savings would have been depleted during his retirement by the need to support himself and his wife.

32. I calculate the figures as follows:

April 2004 - March 2005 (12 months)
($666.67 x 2 x 50%) x 12 months	= $8,000.00
April 2005 - March 2008 (36 months)
($5,466.67 x 50%) + ($666.67 x 2 x 50%) x 36	=$122,400.00
April 2008 - March 2011 (36 months)
($5,466.67 x 50%) + ($5,466.67 x 50%) +
(666.67 x 2 x 50%) x 36	=$220,800.00
For April 2011 - Jul 2011
(4 months until the deceased would have been expected to retire)
($5,466.67 x 50%) + ($5,466.67 x 50%) +
($5,466.67 x 50%) + (666.67 x 2 x 50%) x 4	= $35,466.00
Total post trial loss of accumulation of wealth:	$386,666.00 =========

Funeral Expenses

33. There is no dispute that a sum of $119,266.00 was expended by Madam Chan on funeral expenses. The Plaintiffs claim for this sum is challenged on the basis that she received $100,000.00 from the Defendants as funeral expenses after the accident, a burial grant of $4,000.00 from the Social Welfare Department and $32,000.00 from the Apple Daily.

34. There was nothing to contradict Madam Chan's evidence that she was assured when she was given the $100,000.00 for her emergency use that it would not be deducted from any future compensation. I accordingly accept her evidence.

35. I find none of these sums deductible (see Wong Kou-shee & Another v. Chu Che Ping & Chu Cheung Chun [1981] HKLR249). I award the Plaintiffs $119,266.00 under this head.

Summary of Damges

36. I summarize the damages as follows:

(a) Pre-trial loss of dependency	$991,500.75
(b) Post trial loss of dependency	$1,690,172.00
(c) Bereavement	$150,000.00
(d) Pre-trial loss of accumulation of wealth	$111,750.00
(e) Post trial loss of accumulation of wealth	$386,666.00
(f) Funeral expenses	$119,266.00
Less employees compensation awarde	$1,613,782.80
Total	$1,954,837.00 ==========

37. I accordingly give judgment in the sum of $1,954,837.00 plus interest thereon from today until payment at judgment rate. I decline to award interest on the pre-trial losses in view of the payment of Employees Compensation (which included a sum in respect of interest) on 29 September 1999.

38. Unless either party applies to be heard on the question of costs within 14 days the costs of the Plaintiff are to be taxed and paid by the Defendants .

39. The Plaintiff's own costs to be taxed under the Legal Aid Regulations.