MOK MERLA AND OTHERS v. OCEAN CROWN TRANSPORTATION LTD. AND ANOTHER

HCPI 266/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.266 OF 1998

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J U D G M E N T

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1. Before his death, Mok Tat Fai ("the Deceased") was employed by the 1st defendant as an assistant operation manager at a container yard at Lot 71 Sai Tso Wan Road in Tsing Yi. On 15 March 1995, he suffered multiple injuries in an accident from which he died four days later. It is no longer disputed that he was knocked down in the yard by a 20 foot container which was being carried by a truck called a front loader transporter driven by another employee, Fung Pui Man ("Fung"). Fung is also sued in these proceedings as the 2nd defendant. The plaintiffs are the administratrices of the estate of the Deceased and make this claim on behalf of the estate and the dependants of the Deceased.

Liability

2. The plaintiffs say that the accident was caused by Fung's negligence, for which the 1st defendant was vicariously liable. It is alleged that Fung manoeuvred the transporter at too fast a speed and that he had failed to keep a proper look out. The plaintiffs further say, as against the 1st defendant, that the 1st defendant was negligent and/or was in breach of statutory duty, inter alia, in failing to provide a safe system of work and to provide adequately trained or experienced staff. They rely on the fact that the 1st defendant was convicted on its own plea of guilty of the offence under regulation 15A(1) and 19 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations for failing to ensure, as the owner of a crane, that the crane was operated by a person who was the holder of a valid certificate issued by the Construction Industry Training Authority or by any other person specified by the Commissioner.

3. Neither the plaintiffs nor the defendants called any witness to testify as to the circumstances of the accident. The only evidence before the Court which throws any light on how the accident happened is the evidence of Fung and of a co-worker called Cheung Kwok Chi ("Cheung") given at the Death Inquest of the Deceased in October 1995 and their respective statutory declarations given to the Labour Department in April 1995.

4. I have, at the request of the defendants, made a visit to the site for the purpose of viewing a transporter which was agreed to be of the same model as the one involved in the accident. A transporter is a heavy truck equipped with two telescope booms for lifting a container. It is called a front loader transporter presumably because it carries and moves the container by suspending it in front of the transporter. The operator can, by controlling the booms, also move the container upward or downward whilst it is suspended at the front of the transporter. It is only if the container is suspended at a level of at least some 15 feet above the ground that the operator would be able to have an almost unobstructed frontal view (it being only partially blocked by the width of the two booms on each side of the operator's cabin). If the container is lowered to below 15 feet, the container would be obstructing the view of the operator. And if it is lowered to a level of some 1 to 2 feet or even 4 to 5 feet above the ground, the operator's frontal vision would be completely blocked by the container. If he were to move forward with the container in such a position, he would practically be driving blind. The transporter is equipped with a horn which emits a warning sound when pressed manually. When reversing, the transporter also has a different warning sound.

5. The following picture emerges from the evidence of the 2nd defendant and Cheung at the Inquest and their statutory declarations, although the accounts they gave are rather sketchy and unsatisfactory, and in certain areas inconsistent.

6. At the time of the accident Fung was operating the transporter to move empty containers, one at a time, within the container yard, to an area by the sea.

7. According to Fung's declaration, he started some time before 6 p.m. and the accident happened when he was moving the fourth container. He said that after he had picked up the container, he backed the transporter into what he called "the third street". This is a reference to a corridor lined on both sides by containers. He said he saw at that time a person next to the container at the end of the "street" whom he recognised to be the Deceased. When he was prepared to turn the transporter into the "street", he did not see the Deceased any more, and there was no one in the "street". He lifted the container about 10 odd feet from the ground and drove into the "third street". At that time, he had a reasonably clear view of his way ahead.

8. He said he drove the transporter to somewhere about 20 to 30 feet away from the end of the street where the empty containers were placed and he proceeded to lower the container until it was 1 to 2 feet away from the ground. He marked that distance on a sketch attached to his declaration. (At the inquest, he gave the distance as 10 feet instead of 20 to 30 feet.) He said he then continued to "push forward slowly" whilst pressing the horn. He was in second gear, but was not able to give a rough estimate of the speed of the transporter. (At the inquest, he said he was travelling at about 10 odd km per hour.) Suddenly, he saw a shadow of a man passing by the right hand corner of the container and he braked immediately to stop the transporter. He did not say whether the man was passing from left to right or from right to left. At the same time, Cheung shouted to him through the walkie-talkie to stop. He got down from the transporter and saw the Deceased lying on the ground, about 2-3 feet away from the right hand corner of the container. Cheung said in his statutory declaration that he did not actually see the container knocking down the Deceased and only saw the Deceased after he had been knocked down. Although the record of his evidence at the inquest referred to the Deceased being struck by the container, I am satisfied that what he was saying there was that he had deduced this from his observations.

9. On the evidence before me, it is clear that Fung drove the transporter forward for some distance at the speed of over 10 km per hour when the container was only 1 to 2 feet above the ground. It is not clear from his declaration and his evidence at the inquest how much distance he had been travelling in this condition before the collision. He had only given an estimate of the distance between the transporter and his destination at the time when he had lowered the container. As to that, I am inclined to believe that his estimate of 20-30 feet given in his declaration made shortly after the accident is closer to the truth than the estimate of 10 feet he gave later at the Inquest. But whatever was the distance, he was driving practically blind and such manner of driving created an obvious risk of collision resulting in injury to person. This is so despite the fact that Fung may, as he claimed, to have been pressing the horn when moving forward. The sounding of the horn cannot, in my view, be a substitute for driving with a clear view of what was in front.

10. Fung said at the inquest that it was "company regulation" that he had to lower the container when he reached a distance of about 8 to 10 feet from the destination. No explanation has been offered to the Court as to why such a regulation was imposed, if indeed, such regulation existed. Mr McNamara submitted that the system of work was inherently safe. I disagree. In my judgment, a system of work which permits, or (which is even worse) requires, a driver of such a heavy vehicle as the transporter with a 20 foot container suspended in front to be driven blind is plainly unsafe. A transporter carrying a container should not be allowed to move forward when the driver's frontal view is obstructed, without at least requiring an additional worker to give effective signals to the person operating the transporter. Walkie-talkies were certainly available, and an additional worker could and should have been deployed to guide the operator of the transporter.

11. In my judgment, the 2nd defendant was negligent in the manner in which he operated the transporter and the 1st defendant is vicariously liable for his negligence. The 1st defendant was also guilty of negligence in the adoption of the unsafe system of work.

12. Did such negligence cause the accident? Mr McNamara for the defendants submitted that even if the Court were to find that there was negligence on the part of the defendants, such negligence did not cause the accident to happen. He submitted that I should find on the evidence that the Deceased must have walked out from a position behind some containers into the path of the transporter. I do not consider that the evidence justifies such a finding and I decline to do so. I note that on the sketch appended to Fung's declaration, there is shown a line of containers to the right of the transporter. These containers are marked as extending towards the waterfront in such a way as to tend to negative Mr McNamara's hypothesis.

13. Mr McNamara submitted that the Court cannot find liability proved against the defendants if the Court did not have evidence of how the accident happened. Certainly, if the Court had no evidence at all of how the accident happened, the Court cannot come to a conclusion one way or the other whether the negligence of a defendant caused the accident. Here, however, there is evidence that the Deceased was struck by the container which was being suspended at the front of the transporter whilst being in effect driven blind. In such circumstances, the Court applying common sense has little difficulty in concluding that had the 2nd defendant not driven the transporter forward in the manner he did, or if he had been guided by another worker giving him effective signals before moving forward, it is at least more likely than not that this accident would not have happened.

14. In the circumstances, I find liability established against both defendants.

15. The plaintiffs have alleged that the defendants were negligent and that the 1st defendant was in breach of statutory duties in other respects. Thus, it is said that the 1st defendant should have fitted the transporter with a warning light and should have provided the Deceased with reflective clothing. Whether prudence would dictate that these measures be adopted, I am satisfied that any failure in these regard could not have caused the accident. The evidence does not suggest that there was any problem with regard to visibility at the time of the accident. Nor do I consider the 1st defendant's conviction under regulation 15A of the Factories and Industrial Undertakings (Lifting Appliance and Lifting Gear) Regulation add much to the plaintiff's case. In my view, what had caused the accident was Fung's manner of operation of the transporter and the unsafe system of work that was adopted. The former may be due to the inexperience and lack of qualification of Fung, in which event, the 1st defendant's failure to provide competent staff as evident from the fact of the conviction would be causative of the accident. I do not, however, find it necessary to rest my judgment on this ground.

Contributory Negligence

16. The defendants aver that even if there is liability on the part of the defendants, the Deceased's own negligence had contributed to the accident. Mr McNamara made three submissions in support of the plea of contributory negligence :

(1) first, he reiterated his submission that the evidence revealed that the Deceased must have walked out from a position behind some containers into the path of the transporter,

(2) secondly, he relied on the evidence that the 2nd defendant was continuously pressing the horn, and argued that the Deceased was guilty of contributory negligence in not heeding the warning signal,

(3) thirdly, he argued that the Deceased, in his capacity as assistant operation manager, was responsible for devising a safe system of work.

17. I reject the first submission for the reason given above in relation to the argument on causation.

18. The difficulty with the second submission is that although the horn would, in normal circumstances, have provided a warning, it is not possible to ascertain from the evidence why the Deceased did not heed that warning. The fact that the Deceased failed to take notice of the warning could be due to carelessness, a mere momentary inadvertence (which in law does not amount to contributory negligence, see per Lord Keith in John Summers & Sons Ltd v. Frost [1955] AC 740 777), or because, for whatever reason, he had been distracted and did not hear the warning sound or mistook it to have come from a different direction or had insufficient time to react. There is simply insufficient evidence from which the Court can draw an inference of contributory negligence. Mr McNamara submitted that if the Court does not have sufficient evidence to form a view as to how the accident happened for the purpose of finding contributory negligence, it would not be able to find liability against the defendants either. My attention has been drawn to an unreported decision of the Court of Appeal in So Fat v. Ken On Concrete Co. Ltd, Civil Appeal No.193 of 1991. That was a case where the trial judge was unable to distinguish between two possibilities, one pointing to the accident being caused by the defendant's negligence, but the other did not involve any blame on the part of the defendant. In those circumstances, the Court of Appeal held that the judge was wrong in law to find negligence with a 50% contributory negligence. On the facts of this case, I hold that there is sufficient evidence to find, on the balance of probabilities, that the accident did occur as a result of the defendants' negligence, but that the defendants have not discharged the burden, which is upon them, of proving contributory negligence.

19. As for the third submission, I find that the defendants have failed to prove that the safety of the system of work was part of the Deceased's duties. Mr McNamara was able to point only to a statutory declaration of a person who apparently has overall responsibility for the yard. The declaration described the Deceased's duties in the yard to include daily supervision of technical operation, distribution of labour and instruction of work, and to ensure smooth operation. I decline to find on such meagre materials that the Deceased was charged with any duty for the safety of the operation.

20. The defendants had, in their Defence, alleged that the Deceased was distracted by being pre-occupied with talking on his mobile phone. Mr McNamara did not pursue this allegation at the trial on the basis that there was no evidence that the Deceased was talking on a mobile phone. Even if there had been such evidence, it is difficult to see how some one can be said to be guilty of contributory negligence if his attention was distracted whilst talking on a mobile telephone when there is no suggestion that workers were warned or advised not to use mobile telephones within the yard due to safety considerations.

21. In the event, I find that the defendants have failed to discharge their burden of proving that the accident happened due to the negligence of the Deceased in disregarding his own safety.

Quantum

22. Damages are claimed under four heads :

(1) damages for bereavement under section 4 of the Fatal Accidents Ordinance, which is agreed at $70,000;

(2) special damages, being funeral expenses in the sum of $70,000, originally claimed at $70,000 but reduced to $50,000;

(3) loss of dependency under section 3 of the Fatal Accidents Ordinance, and

(4) loss of accumulation of wealth under section 20(2)(b)(iii) of the Law Amendment and Reform Consolidation Ordinance.

Pre-trial loss of dependency

23. I shall deal first with the claim for loss of dependency. The claim is brought on behalf of the following dependants, viz :

(1) the widow, aged 40 at the time of the accident and 47 at the time of the trial,

(2) Mok Yun Sun, eldest son of the Deceased, aged 16 at the date of the accident and 23 at the time of the trial,

(3) Mok Yun Fai, second son of the Deceased, aged 12 at the time of the accident and 20 at the time of the trial,

(4) Mok Yun Cheong, youngest son of the Deceased, aged 7 at the time of the accident and 14 at the time of the trial, and

(5) Mok Kee Fan, father of the Deceased, aged 69 at the time of the accident and 76 at the time of the trial.

24. The Deceased himself was 40 at the date of his death. It is agreed that at that time, his average earnings amounted to $24,248 per month. This included basic salary, allowance, overtime pay, Chinese New Year bonus and special bonus. The parties have also agreed that if the Deceased had survived the accident, his earnings would have increased between the date of his death and the date of the trial by 25.55% to $30,445 per month. For the purpose of the pre-trial loss of dependency, the median earnings is calculated as ($24,248 + $30,445) ( 2 = $27,346 per month.

25. The widow gave evidence that the Deceased usually gave her $12,000 to $13,000 a month to start with and when she ran out of money, she would ask the Deceased who would give her another $1,000 to $2,000 for housekeeping expenses. The total figure per month was about $15,000 which comprised $5,000 for mortgage instalment on the matrimonial home, $5,000 for food, $3,750 for school expenses and pocket money for the children and $1,250 for utilities. These are, of course, rough figures and I note that the list does not even include such things as management fees, rates, expenses for entertainment and clothing for the family. The widow also testified that the Deceased would take the family to Manila (where the widow's maiden home is) once every two years on holiday. Each trip would cost about $20,000. On these matters of dependency, I accept the widow's evidence. They appear to me to be reasonable and there is no evidence which casts any doubt on this part of her evidence. Before the accident, the Deceased also contributed the sum of $1,000 per month to his father. This fact is not challenged.

26. The position of the widow remained much the same throughout the pre-trial period of about 87 1/2 months from the date of death (March 1995) to the date of trial (July 2002). The parties are able to agree that 9.28% of the income of the Deceased per month would have gone to support the widow in her routine expenses. (That figure of 9.28% was arrived at by taking the widow's share of the household expenses at $2,250, being 1/5 of the total of the mortgage payments, food and utilities, over the income of the Deceased at the date of his death viz. $24,248.) This percentage of 9.28 does not include the widow's loss of the benefit of the biennial holiday provided by the Deceased. The widow's loss of benefit would be $10,000 divided by 5 for each year. Taking these into account, I assess the widow's pre-trial loss of dependency at :

$27,346 x 9.28% x 87.5 + $2,000 ÷ 12 x 87.5 = $236,633.

27. The position of each of the three children of the Deceased was different, and they have to be considered individually.

28. The eldest son, Yun Sun, was 16 at the time of the accident. He is now 23. He left school in June 1996. Although he continued to take some part time course at an industrial college, he was able to obtain a job since he left school and earned $7,000 per month. The evidence is that he was out of job for some time. He was married at one stage but was later divorced. He now earns $9,000 to $10,000 a month as a warehouse keeper. He has all along been living with the widow but did not contribute towards the household expenses until January 2002 when he started to give his mother $1,000 to $2,000 per month. For Yun Sun, the defendants would only accept that he had lost two years of dependency. The plaintiffs argue, however, that his dependency lasted for the whole of the pre-trial period although it is accepted that the amount of dependency decreased over that period.

29. There is nevertheless some measure of agreement between the parties. It is agreed that Yun Sun's share of the living expenses whilst he was at school was 14.43% of the income of the Deceased. (This percentage was arrived at by taking his share of household expenses as $2,250 + 1/3 x $3,750.) Again, this has not taken into account the loss of the holiday provided by the Deceased once every two years.

30. I find on the evidence that Yun Sun's pre-trial loss of dependency is as follows :

(1) from mid March 1995 to mid June 1996 (15 months) at $27,346 x 14.43% x 15 + $2,000 ÷ 12 x 15 = $59,190 + $2,500 = $61,690,

(2) from mid June 1996 to December 2001 (66 1/2 months) there was a reduced loss of dependency which is assessed at $2,000 per month = $133,000.

Although Yun Sun had been able to earn some income during the later period i.e. June 1996 to December 2001, that income did not allow him to be fully independent, and he would still need to rely on the Deceased for lodging and meals. It would, however, be unlikely that he could expect his father to pay for his holidays. The total pre-trial loss for Yun Sun is therefore $194,690.

31. Yun Fat was 12 at the date of the accident. He was then a full time student. He studied up to Form 5 and attended a full time course in management. He started work as a delivery worker near the end of the year 2000, earning $5,000 a month. By the time of the trial, he was earning $8,000 as a driver. He started to make contribution only in January 2002. Like his brother, he was also living with the family throughout this period.

32. The argument over Yun Fat's dependency is similar to that over Yun Sun's dependency. The defendants suggested a multiplier of 6. The plaintiffs contend for a multiplier of 10 although with a reduced amount of dependency over that period.

33. Having considered the evidence and Counsel's arguments, I find Yun Fat's pre-trial loss of dependency as follows :

(1) from mid March 1995 to mid June 2000 (when he reached 18 and completed Form 5) i.e. 63 months at $27,346 x 14.43% x 63 + $2,000 ÷ 12 x 63 = $248,600 + $10,500 = $259,100,

(2) from mid June 2000 to December 2001 (18 1/2 months) there was a reduced loss of dependency which is assessed at $2,000 per month = $37,000.

Like the case of Yun Sun, I find that during the period Yun Fat had left school i.e. June 2000 to December 2001, he had been able to earn some money, but that income did not allow him to be fully independent. He would still need to rely on the Deceased for lodging and meals. It would, however, be unlikely that his father would have paid for his holidays. The total pre-trial loss for Yun Fat is therefore $296,100.

34. Yun Cheong was 7 at the date of the accident and is now 14, with his next birthday on 15 July 2002. The defendants accept his pre-trial loss of dependency as $27,346 x 14.43% x 87 1/2 = $345,277. This, however, only takes account of his share of the ordinary household expenses. In addition, he lost the benefit of the holiday at $2,000 per annum. His pre-trial loss of dependency is assessed at $345,277 + $2,000 ÷ 12 x 87 1/2 = $359,860.

35. The Deceased gave his father $1,000 per month. As a result of the accident, the father lost that dependency, which is assessed at :

($1,000 + $1,225.5) ÷ 2 x 87.5 = $97,366.

This was the figure accepted by the defendants in their Answer to the Plaintiffs' Revised Statement of Damages. However, Mr McNamara sought to argue at the trial that the $1,000 should not be adjusted for inflation. I see no reason why it should not be. The arithmetic set out above should not be taken to suggest that the Court is finding that the Deceased would, but for the accident, be giving his father the odd figure of $1,225.50 per month at the date of the trial. Rather, what the Court is assuming is that some time during this period, the Deceased would have been likely to increase his contribution to his father and it would be fair to assume, as in the case of the other dependants, that such contribution would have increased roughly along the line of increase of his own income.

Post-trial loss of dependency

36. In the case of the widow, the parties agree that the overall multiplier (assessed as at the date of death in accordance with Cookson v. Knowles [1979] AC 556) should be 14. Thus, the loss of dependency in her case for the post-trial period is :

$30,445 (notional income of deceased at date of trial) x 9.28% (being the percentage of share of household expenses attributable to the widow over the deceased's income at date of death) x (14 x 12 - 87.5) + $2,000 ÷ 12 x (14 x 12 - 87.5) = $227,436 + $13,417 = $240,853.

37. In the case of Yun Sun and Yun Fat, I find that their dependency ceased in December 2001. There is hence no post-trial loss of dependency recoverable in their case.

38. For Yun Cheong, there is a dispute over the multiplier. The plaintiffs contend for 12 (leaving a post-trial balance of 56 1/2 months) whilst the defendants contend for 9 (leaving a balance of 20 1/2 months). He is currently in Form 3 at Kwun Tong Maryknoll College. This was his first choice when he completed primary school. The widow maintained in her evidence that this boy was the brightest and most diligent among her children. She said she would support his university education. Mr McNamara pointed to the absence of any testimonial or school report and submitted that I should take the suggestion of university education for this boy as no more than an expression of hope.

39. What the Court has to do here is to arrive at a multiplier as at the date of death, taking into account what has in the meantime happened. There is, of course, no certainty that Yun Cheong would receive university education, but there is equally a chance that he would do so and the Court should, in my view, adopt a multiplier which reflects that chance, see Corbett v. Barking Havering and Brentwood Health Authority [1991] 2 QB 408 at 430 per Purchas LJ. I bear in mind that if Yun Cheong were to go to university, the amount of dependency would in all likelihood increase. In the circumstances, I propose to adopt an overall multiplier of 11 for Yun Cheong while keeping the multiplicand as $30,445 (notional income of deceased at date of trial) x 14.43%. In the result, the post-trial loss of dependency is calculated as follows :

$30,445 x 14.43% x (11 x 12 - 87 1/2) + $2,000 ÷ 12 x (11 x 12 - 87 1/2) = $195,498 + $7,417 = $202,915.

40. The claim for the post-trial loss of dependency on behalf of the Deceased's father is also in dispute. For the plaintiffs, Mr Li asked for an overall multiplier of 10 leaving 32 1/2 months remaining post-trial. Mr Li recognises that the normal multiplier of a dependant aged 69 at the date of the death of the Deceased would not be as high as 10, but contended for a higher multiplier since over 87 1/2 months have elapsed from the date of the death and the evidence is that the Deceased's father, now aged 76, is still alive and healthy. The case is exceptional in that, by reason of the time which has taken for the case to come on trial, the adoption of a conventional multiplier for the particular dependant would appear to produce the unjust result that there will be either no award or an award so small as to be woefully insufficient to cover the future dependency. That was the situation in Corbett. There, the infant plaintiff's mother died after giving birth to him. Her death was due to the negligence of the defendant. A conventional multiplier for the infant for the loss of dependency on his mother assessed at the date of her death would be 12. The action took 11 1/2 years to come on trial, so that by the date of the trial, there was only a balance of 1/2 year post-trial loss of dependency if the conventional approach were adopted which would plainly be inadequate to cover what was then expected future dependency. In those exceptional circumstances, the majority of the Court of Appeal (Purchas and Farquharson LJJ) made an upward adjustment of the multiplier by increasing it from 12 to 15. Mr Li urges me to adopt the same approach here and adopt an overall multiplier of 10 for the father. The defendants argue that there should be no compensation for post-trial loss of dependency, contending for a multiplier of 7, so that the 87 1/2 months before the trial have exhausted the multiplier for this dependant.

41. In Corbett, Purchas LJ explained (at p.422E) the multiplier/multiplicand approach in assessing loss of dependency as follows :

"The use of the multiplier/multiplicand approach for the capitalisation of damages 'in futuro' to be compensated for a once-for-all lump sum provision is an adequate and well known instrument; but like all instruments, it must be used in an appropriate manner.

In every assessment of damages 'in futuro' to be compensated by an immediate payment there are at least five essential elements: (1) the likelihood of the provider of the support continuing to exist; (2) the likelihood of the dependant being alive to benefit from that support; (3) the possibility of the providing capacity of the provider being affected by the changes and chances of life either in a positive or in a negative manner; (4) the possibility of the needs of the dependant being altered by the changes and chances of life, again in a positive or negative way; (5) an actuarial discount to compensate (a) for the immediate receipt of compensatory damages in advance of the date when the loss would in fact have been incurred, and (b) the requirement that the capital should be exhausted at the end of the period of dependency...

In my judgment, as a general rule in order to arrive at the multiplier it is necessary to take the following steps: (a) consider the combined effect of (1) and (3) in order to arrive at the number of years during which the provision of the support is likely to be available if needed by the dependant; (b) consider the combined effects of (2) and (4) in order to arrive at the number of years during which the dependant is likely to need the support; (c) apply (5) to the lesser of (a) and (b) above, with an added but usually minor discount to take account of an outside chance that choice between (a) and (b) might in the event prove to be wrong."

42. Had this assessment taken place immediately at the time of the death, a multiplier of 7 would have been appropriate to take account mainly of factors (2) and (5). If the trial had taken place, say, one year after the death, the same reasoning would apply, save that there would be an award of interest to cover that period of one year when the defendant has the use of the money. Here, however, the time taken for trial is 87 1/2 months. We now know a fact which would not have been known had the assessment taken place at the time of the death, namely, that the father is still alive and well after a period of over seven years. In my judgment, the Court cannot ignore that fact, just as the Court would take into account the fact, known only at the time of trial and not at the date of death, that the notional income of the Deceased has increased between those two dates.

43. How should the Court take into account of this fact? In my view, it would be wrong simply to assess a multiplier at the date of trial and add that on to the period which has elapsed since death. To do so would be over-generous to the dependant as that would be assuming, to the advantage of this dependant and to the disadvantage of the defendants, that the Deceased would, but for the accident, have lived for the entire period of the multiplier adopted and been in a position to support this dependant. To do so would also be ignoring the fact that a multiplier should take account of the fact that the dependant receives a lump sum in advance of the date when the loss would in fact have occurred, and would normally be compensated by an award of interest for the period between the date of the death and the date of trial. Rather, the correct approach would be to assess the multiplier as at the date of the death, but adopt a higher figure to take account of the fact, which was not known at the trial, that the father would remain alive and healthy some 7 1/2 years later.

44. In the circumstances of the present case, I would adopt an overall multiplier of 8.5 at the date of death. This is a higher multiplier than the one I would have adopted had this assessment been made at the time of the death, but is not as high as adopting a multiplier as at the date of trial and adding that on to the period since death.

45. The post-trial loss of dependency for the father is therefore assessed at :

1,225 x (8.5 x 12 - 87 1/2) = $17,763.

Loss of accumulation of wealth

46. The Court may award damages for the benefit of the estate if it is "satisfied that, but for the act or omission that gave rise to the cause of action, the deceased would have achieved an accumulation of wealth by the time that he would otherwise have died" (see section 20(2)(b)(iii) of the Law Amendment and Reform (Consolidation) Ordinance) .

47. The claim under this head is hotly disputed. The Deceased left no savings at the time of his death, and the defendants argue that the evidence reveals that the Deceased was not only some one who had had no pattern of savings, but indeed a gambler who had the propensity of losing all money available to him and more. On the other hand, the plaintiffs ask me to adopt a multiplier/multiplicand approach, and suggest that the multiplicand for the pre-trial period should be $5,000 per month and that for the post-trial period should be $8,000 per month.

48. In Lam Pak Chiu v. Tsang Mei Ying [2001] HKLRD 193, the Court of Final Appeal gave some guidance on how the Court should approach an assessment under this head. It held that a pattern of savings is not an absolute pre-condition to an award under this head. It is in the nature of any assessment under this head that the Court is inevitably driven to look into the future and ponder what might or might not have happened but for the accident. The Court does not look for proof on the balance of probabilities. As Lord Reid observed in Davies v. Taylor [1974] AC 207 at 212H-213C, one can prove whether a past event happened, but it is not possible to prove that a future event will happen. All that the law can look for and evaluate are the chances, whether they are more or less than even, in the amount of damages it awards. This does not mean, however, that in every fatal accident case the Court must give some award for loss of accumulation. The Court can only do so where there is, adopting a balanced view in any given case, a "real prospect" of eventual accumulation of wealth, see per Bokhary PJ in Lam Pak Chiu at p.203G-H.

49. Is there a real prospect of eventual accumulation of wealth in the present case? Before considering this question, I must set out the evidence much more fully than has hitherto been necessary in this judgment.

50. The Deceased first met the widow in 1975 in the Philippines. He was then a seaman based in Hong Kong. After their marriage in March 1978, the Deceased continued in the same occupation, advancing from third mate to chief mate. At some stage, he stopped working in ocean going ships and became a steward in the hydrofoil plying between Hong Kong and Macau. The evidence is that this entailed a substantial reduction in his salary from about $22,000 to $13,000 per month. At about the same time he changed jobs, the Deceased started up an agency for recruiting Filipino maids. He was able to earn about $2,000 per contract and made quite a handsome profit from this business at the beginning, so much so that he started an office in Hunghom and quit his job with the ferry. The evidence is that there was a change in Government's policy in 1992 which led him to close his agency business and began employment with the 1st defendant.

51. Some time in 1993, the widow discovered that the Deceased was having an affair with the maid working in their family. She petitioned for divorce in July 1993 and sought an injunction to restrain him from molesting her. In that petition, the widow alleged that the Deceased was an inveterate gambler, and that he used to go to Macau for gambling twice or three times per month, that he also enjoyed playing mahjong, betting on horses and Mark Six, and that because of his gambling habits, he had accumulated loans of unknown amount from his friends and family members. The summons for injunction was later withdrawn and the parties entered into a Deed of Separation. That Deed provided that the Deceased should pay to the widow a lump sum of $300,000. The evidence is that the parties were reconciled in about late 1993, and the Deed was never implemented. In December 1994, the Deceased took out a second mortgage on the matrimonial property. That property was purchased under the Home Ownership Scheme some time ago at the cost of $280,000 with the assistance of a mortgage of $250,000. At the time when the second mortgage was taken out, the capital value of the property had substantially increased, but the first mortgage had not yet been fully paid off. This second mortgage was obtained to secure an advance of $200,000 which, on the evidence before me, was used to pay off some loans from the Deceased's brothers and their father, totalling $120,000. The balance of $80,000 was kept by the widow.

52. The brother of the Deceased (Mok Tat Shing) gave evidence that the debt of $120,000 was incurred by the Deceased as a result of some improvident investment in loco London gold and margin trading. I accept that evidence. The widow admitted in evidence that the Deceased played mahjong and bought Mark Six and did go to the casino on the occasion that he took her to Macau, but denied that the Deceased was addicted to gambling, or that he had the habit of going to Macau two or three times a month to gamble. Mr McNamara challenged her credibility, pointing out, with some justification, that the widow's evidence that the Deceased had come back every night to the matrimonial home during the stormy period of their relationship in the middle of 1993 was contrary to the documentary evidence and to the evidence of the brother.

53. The widow's evidence on these aspects are unsatisfactory and I have little doubt that the Deceased did gamble from time to time. I do not, however, consider that there is sufficient evidence that the Deceased was an inveterate gambler. As Mr Li pointed out, there is no suggestion that the Deceased failed in his obligation of making monthly contribution to the household expenses or with the payment of the mortgage instalments. The $120,000 loan that the Deceased obtained from his relatives appeared to be a one-off event. Nevertheless, I agree with Mr McNamara's submission that the Deceased was not prudent with his money.

54. I have already noted that the Deceased had no savings at the time of his Death. The equity in the property was due largely to the appreciation in value over the years. However, at the time of his death, the Deceased was supporting his three sons, all of whom were at school. He was also paying the mortgage instalments. As Mr Li points out, as the children grow up, the dependency on him would decrease. Furthermore, the two mortgages would have been fully repaid by December 2004. He would have substantially more money in his hands which would be available for saving.

55. I bear in mind that the Deceased would also be entitled at the end of his working life to the employer's contribution to the mandatory provident fund which is agreed between the parties at $99,500. He himself would, but for the accident, have to contribute a like amount to the fund. This is of course of a form of compulsory saving.

56. In these circumstances, I hold that there is a real prospect that the Deceased would have accumulated some wealth at the time of his natural life. I do not consider that a multiplier/multiplicand approach to be appropriate here, bearing in mind that the Deceased did not have a regular pattern of savings and had the propensity of spending even more than he earned. I would instead award a global sum of $300,000 as loss of accumulation of wealth. In arriving at that figure, I have had regard to the cases cited before me, including those referred to by Bokhary PJ in Lam Pak Chiu. I also bear in mind that both his and the employer's share of the mandatory provident fund would have been available to him at the time of his retirement.

Funeral expenses

57. There is a claim for funeral expenses in the sum of $50,000. The widow gave evidence that this was the amount spent. She was not able to produce any receipt, and could only point to a cash withdrawal of $30,000 from her bank account as being referable to funeral expenses. She said the balance came from friends and the 1st defendant. It seems to me that if part of the funeral expenses was paid for by the 1st defendant, it cannot be right for the plaintiffs to receive damages for that part of the expenses. I have no evidence of how much that sum is. On the evidence, I will only award $30,000 under this head.

Awards and apportionment

58. The sums I award are therefore :

(1) damages for bereavement $70,000,

(2) special damages being funeral expenses $30,000,

(3) pre-trial loss of dependency for the widow $236,633,

(4) pre-trial loss of dependency for Yun Sun $194,690,

(5) pre-trial loss of dependency for Yun Fat $296,100,

(6) pre-trial loss of dependency for Yun Cheong $359,860,

(7) pre-trial loss of dependency for the father $97,366,

(8) post-trial loss of dependency for the widow $240,853,

(9) post-trial loss of dependency for Yun Cheong $202,915,

(10) post-trial loss of dependency for the father $17,763,

(11) loss of accumulation of wealth $300,000.

59. In August 1996, the 1st defendant consented to an application for the Employees' Compensation to be assessed and awarded in the sum of $966,287. It is agreed that this sum must be taken into account. I propose to apportion this sum as follows :

23% for the widow and each of the three children ($222,246) and 8% for the father ($77,303). I do so on the basis of the evidence that the dependants were receiving $12,000 per month from this award, of which the father had the benefit of $1,000 (i.e. 8%) and the balance was used for the benefit of the widow and the three children more or less equally.

60. The total award, after deduction of the Employees' Compensation, is therefore :

LARCO

Funeral expenses	$30,000
Loss of accumulation of wealth	$300,000

FAO

Bereavement	$70,000
Loss of dependency $1,646,180 - $966,287	$679,893
Total	$1,079,893

Interest

61. The plaintiffs claim interest :

(1) at half the judgment rates for pre-trial loss of dependency, loss of accumulation of wealth and special damages from the date of the Deceased's death to the date of judgment; and

(2) at the prevailing rate payable on suitors' funds for bereavement from the date of the writ to the date of judgment.

62. The defendants contend that any award of interest should take into account the fact that the 1st defendant had paid employees' compensation in the sum of $966,287 since 1996. I agree. Mr McNamara also invited me to disallow interest on the ground that there has been inordinate delay in the prosecution of this action. As to that, the record shows that the writ in this action was issued in March 1998 just within the three years limitation period. In July 1999, Suffiad J gave leave to set the case down in the Running List within 42 days but not be warned before October 1999. There was then a wholly unexplained delay until May 2002 when, after a change of solicitors, the present solicitors for the plaintiff obtained an order removing the case from the Running List and set it down in the Fixture List for the trial to commence on 2 July 2002.

63. Interest is awarded to a plaintiff, not as compensation for the damage done, but for being kept out of the money which ought to have been paid to him (Union Base Ltd v. Tsang Shek Tong [1998] 2 HKC 349). In fatal accident cases, the Court would normally award interest at the rate and for the period as that suggested by Mr Li for the plaintiffs. However, where the plaintiff has been guilty of unjustified delay in prosecuting, the Court may diminish the award of interest or alter the period for which it is allowed: see Hong Kong Civil Procedure 2002, para.6/L/26. The fact that the interest of a minor is involved does not alter these principles, see Corbett at p.432B-D.

64. There has in this case been a delay of over two years which has been unexplained. In the exercise of my discretion, I would disallow interest for two years from May 2000 to April 2002.

65. In the result, I would award interest at half the judgment rates on the sum of $1,214,649 (being the total pre-trial loss of dependency plus special damages) from March 1995 until August 1996, and at the same rate on the sum of $248,362 from August 1996 to April 2000 and from April 2002 to the date of judgment. I would also award interest at the prevailing rate payable on suitors' funds for the sum of $70,000 from the date of the writ to the date of judgment, but excluding the period of two years mentioned above. The plaintiffs can no doubt look to those responsible for being deprived of the full period of interest.

Costs

66. I make an order nisi that the costs of this action be paid by the defendants to the plaintiffs, to be taxed, if not agreed, on a common fund basis, and that the plaintiffs' own costs be taxed in accordance with the Legal Aid Regulations.

67. It remains only for me to thank both counsel for their able assistance.