WAI KANG KWAN AND ANOTHER v. WONG WING HONG AND ANOTHER

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ASSESSMENT OF DAMAGES

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1. The plaintiff sues as the administrator of the estate of his daughter and on behalf of her dependants at her death. The dependants are stated to be the plaintiff himself and his wife and two sons, the mother and brothers of the deceased.

2. The deceased girl was tragically killed in a traffic accident on 25th July 1987 at the age of 17. The writ was issued on the 10th April 1989 and interlocutory judgment was entered against the 1st defendant on 31st May 1989. I understand that the action against the 2nd defendant is unlikely to proceed, although it has not been formally discontinued. This action is of course governed by the legislation introduced in November 1986.

3. Some heads of damage have been agreed. By consent there will be an award of $40,000 for bereavement damages Jointly to the father and mother of the deceased pursuant to S.4(2)(f) of the Fatal Accidents Ordinance. There will also be an award by consent of special damages in the sum of $16,010 as prayed.

4. A claim for rain suffering and loss of amenities is net appropriate to this case, and the remaining issues are those of loss of dependency and accumulation of wealth.

5. At the time of her death the deceased had been employed as an assembler at Transformic Electronics Ltd. since 9th June 1987. This amounted to only 1?months employment, as she had recently finished her form 5 examinations and left school. She was paid on a daily rate basis with allowances, bonus and some overtime. In their submissions, counsel for both parties have assumed a monthly income of $1,980 at the date of death, and the evidence of the girl's mother placed it at around $2,100. The figure of $1,980 appears in the pleadings and I accept it as representing the probabilities.

6. There is also evidence under hearsay notice from the deceased's employer that she would have earned 52,500 a month after a year from the accident and $2,587 a month by January 1989. Her employer apparently thought well of her and I accent that she was likely to have remained in such employment and to have received those sums. They are anyway not disputed.

7. The deceased's mother testified that her daughter would give her two brothers $50 each per month out of her earnings. The balance she would give to her parents, who would give her back a total of S400 a month for her own expenditure. On this evidence I am asked by Mr. Fok to assume a dependency of $50 each per month for the brothers and of the balance less $400 per month for the parents. Mr. Ramanathan for the defendant differs from this approach. Firstly, he urges a larger deduction for personal expenditure, and secondly he proposes a dependency based on each family member being one fifth entitled to the deceased's contribution.

8. The mother's evidence established the deceased as a considerate daughter who was conscious of her family responsibilities. Evidence under hearsay notice also persuades me that she was a willing contributor, both at school and in her several extra-curricular activities. The was apparently not brilliant, but her enthusiasm and readiness to volunteer were particularly notable. I cite in this context the letter from the YMCA as to her activities, which appears as Exhibit PA at page 24-21 of the plaintiff's bundle.

9. From this evidence I am satisfied that the deceased' would have continued to contribute to the support of her family at least until her marriage. A multiplier of 16 for the deceased's prospective working life is agreed, and counsel also agree a multiplier of 8 for dependency prior to likely marriage.

10. I accent from the mother's evidence that the $400 a month which the deceased received back from bar parents covered only the bare essentials. The witness agreed with defence counsel's suggestion that the deceased would request additional money on occasion, although neither the amounts nor the frequency appear great. The mother resisted counsel's figure of around $600-$700 and placed the total sum, including the initial $400, at between $500 and $600 a month. I find this a fair estimate and accent $550 for the average monthly expenditure of the deceased. To this must be added the $100 she gave her brothers making a total of $650.

11. Mr. Ramanathan's approach to calculating dependency would divide the deceased's contribution by five after deducting the monthly expenditure of $650. In the case of the parents this would give a

(1,980-650)

monthly dependency of  $---------------- = $266.

12. 5

With the two brothers, the dependency would be increased by the $50 each received as a special allowance from the deceased., giving $316 in each case.

13. Defence counsel's premise for this approach seems to lie in his cross-examination as to the family pool for expenses. The mother agreed with counsel's suggestion that monthly earnings would be pooled and any surplus placed by the witness in one of several bank accounts. Mr. Ramanathan argues from this that I should infer a pro rata distribution of the deceased's pooled contribution.

14. I find defence counsel's approach unattractively theoretical. Between the deceased's contribution and the consequent dependency it seeks to interpose the alien factor of entitlement. Hence the five-way division assumes each family member to be entitled to one fifth of the contribution.

15. Section 3 of the Fatal Accidents Ordinance creates a right in the dependants to receive compensation from the person liable in damages to the deceased but for the death. There is no provision restricting the compensation only to each dependant's notional share of pooled resources. Entitlement is not a factor.

16. I accordingly reject the defence approach and rely on the know or probable facts, which are simple. The deceased gave $50 per month to each of her brothers and $(1,980-650)=$1,330 to her parents. Whatever they each, did with that money, it served to establish the dependency.

17. In reaching a median pre-trial level of monthly earnings I take the lower figure as the actual earnings of $1,980. The upper figure is established by reference to Exhibit P.3 at page 24-12 of the plaintiff's bundle. This letter from her employer discloses a likely income of $2,500 a month in July 1988 and $2,587 a month in January 1989, an increase of 30.66% in the 18 months since the accident, or 20.44% per annum. Applying that annual percentage to the January 1989 sum of $2,587, and adding on the result for the eight months from January to trial date, a monthly rate of $2,940 is achieved. The

(1,980+2,940)

pro-trial median is therefore   $--------------------- = $2,460

18. 2

This figure itself represents an increase of 24.24% over the actual earnings at death.

19. The median dependencies pre-trial are therefore reached by upgrading the receipts at death by the figure of the percentage increase in wages. This factor represents an assumption accepted by both counsel that contributions would rise in proportion to earnings. Thus:

Parents :          $1,330 + 24.24% = $1,652.39

each brother : $50 + 24.24% = $62.12

The pre-trial period is 26 months and the parents will accordingly receive a pre-trial dependency award of $42,962 (or $21,481 each) and the brothers $1,615 each.

20. For post-trial loss, Mr. Ramanathan has fairly agreed multipliers at death of 3, 7 and 8, respectively for the elder and younger brothers and the parents. This is based on the assumption of the deceased's marriage in her middle twenties, and half her whole life multiplier has therefore been adopted. These multipliers, less the 26 months to trial, will be applied to the receipts at death escalated by the percentage difference between $1,980 and the notional receipts at trial date of $2,940. This percentage is 48.48%.

21. The figures for post-trial dependency are therefore:

Wai Kai Ming (elder brother)

$50 plus 48.48% thereof = $74.24 x 10 months = $742

Wai Kai Leung (younger brother)

$74.24 x 58 months = $4,306

Parents

$1,330 plus 48.48% thereof = $1, 974.78 x 70 months = $138,235

^{22. The remaining head of claim relates to accumulation of wealth as contemplated by s.20(2)(b)(iii) of the Law Reform and Consolidation Ordinance. Mr. Fok for the plaintiff urges such an award on the assumption that the deceased would have started accumulating wealth after her likely marriage in her middle twenties. It is then be says that her elder brother would have assured the family burdens and, given her marriage and continued working, she would have accumulated savings. Mr. Ramanathan on the other hand urges the lack of an established saving pattern and the speculative nature of such an award.}

23. The terms of the section are such that the court must be "satisfied …. that the deceased would have achieved an accumulation of wealth by the time he would otherwise have died." Mr. Fok stressed in argument that the court should do the best it can, given the uncertainties and the admitted difficulties in calculation. He points out the energetic and conscientious nature of the deceased girl and argues from that the likelihood of a saving of around two thirds of her salary. To this he seeks to apply a multiplier of eight, representing the balance of her whole life multiplier after the application of the multiplier to the dependency.

24. The speculative nature of this approach is compound. It ignores the possibility of children making a full working life difficult or impossible. It ignores the possibility that the deceased may marry poor man and have no savings at all. It ignores the possibility that she may marry a richer man and have no need to work. Finally, and as defence counsel points out, it ignores the lack of an established saving pattern to support an assumption of what used to be called the free balance.

25. However much sympathy the parents evoke, the court is an impartial arbitrator between the parties. It must vigorously, albeit with understanding and humanity, follow established principles and practice in making its award. This is particularly important in assessing damages for death and personal injury, where an element of speculation is necessarily present. The court must not however speculate beyond such future probabilities as may reasonably be inferred from present facts. The assumptions I am asked to make by plaintiff's counsel have little foundation in reality and I decline to make an award for accumulation of wealth.

26. Mr. Fok however urged in argument that an award under this head merely represented a further dependency under another guise. That is, if the deceased should not accumulate the wealth, she would certainly have contributed to her parents after the period contemplated by the initial multiplier.

27. This suggestion, which was not developed in detail, is by no means so speculative as counsel's main argument. The evidence of her mother discloses that the deceased had promised to continue payments to the parents even after marriage. There is ample evidence of the girl's bard working, considerate and loving nature, leading me to conclude that this promise was not idly made. There is moreover the possibility that she may not have married, either in her middle twenties or at all.

28. Given these premises, I accent a probability that the deceased would have continued to contribute to her parents after the period covered by he initial multiplier. The quantification of this probability must be conservative to minimise the speculation which has made Mr. Fok's argument on accumulation so unattractive. For example, I find little likelihood of the deceased supporting her parents for the rest of her working life.

29. I accordingly award a further multiplier of three to the parents' dependency to cover the probability of support for longer than contemplated by the initial multiplier of eight. This also discounts the possibility that the plaintiff may have male only a smaller contribution after her marriage. There is no distiction in principle between this award and the dependency already awarded with a multiplier of 8. It is however considered separately because of counsel's joint approach in applying the 8 multiplier to the dependency from death, leaving the balance for argument under accumulation of wealth.

30. This further award will be confined to the Parents and will amount to:

31. $1,330 plus 48.48% thereof = $1,974.78 x 36 = $71,092

32. The total award will therefore be:

33. Interest on the special damages will run at 2% over prime rate from writ to payment; interest on the bereavement damages will be at 2% Per annum from writ to trial; interest on the pre-trial dependency award will be at 5% per annum. The post-trial dependency award will not attract interest. There will be an order nisi for costs to the plaintiff with a certificate for counsel.