LUK YIU LAM v. LEUNG SAI WA

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. The Plaintiff is the father and administrator of the estate of one Luk Shek Kiu, deceased who was killed in an industrial accident on 15th April 1987. The Plaintiff took out the writ on 20th February 1987 and interlocutory judgment for damages to be assessed was entered on 17th March 1987 in default of a notice of intention to defend.

2. A hearsay notice in respect of various cocuments relating to the employee's compensation claim, accident reports, medical reports, birth and marriage certificates, the deceased's entry permit issued by the Chinese authorities and his bank passbook was served on the Defendant together with the particulars of damages on 21st April 1987. No counter-notice was filed by the Defendant.

3. The deceased, aged 21 at time of death, was killed on 15th April 1987 during his course of employment with the Defendant as a carpenter when a pile of semi finished doors collapsed on him. The deceased was found dead on arrival at the Pok Oi Hospital about 40 minutes after the accident. The Plaintiff and one Kwan Ching Kei, a former co-worker of the deceased, gave evidence at the hearing.

4. Kwan Ching Kei gave evidence that he used to work with the deceased at the Defendant's factory. They did the same sort of work and received the same rate of wages i.e. over $100.00 per day at that factory. He cannot recall the exact rate of wages they received. He said he received $200.00 per day at the date of hearing doing the same sort of work. He said the market rate should be $170.00 - $180.00 per day. He said he received more as his pay was inclusive of extra travelling allowance on account of living far from his present place of work. He said he worked about 26 days a month at the time of the death of the deceased. He also worked similar number of days now.

5. The Plaintiff gave evidence that the deceased's mother and younger sister live in Mainland China. He said he received $160,000.00 as employee's compensation award for the death of the deceased. The deceased lived with the Plaintiff and gave the Plaintiff $500.00 per month for his personal use. There was no need to pay any rent. The deceased used to remit or took money to his mother and younger sister in China. The Plaintiff said it was RMB￥150.00 - 160.00 per month. He said the deceased used to take cash with him to Shenzhen to exchange into RMB as the exchange rates there were more favourable (RMB￥40.00 to HK$100.00) and he could get twice as in Hong Kong (RMB￥27.00 to HK$100.00) for the same amount there. He said the deceased used said the funeral expenses of the deceased amounted to $11,000.00 to $12,000.00 though he forgot to bring his receipts to the hearing.

6. In the notice of accident (Form 2, Cap. 282) the Defendant stated the salary of the deceased to be at the rate of $110.00 per day. The deceased had only worked for the Defendant for 4 days prior to the accident. According to the provisional schedule of assets the deceased left behind $1,550.00 cash in the house and a credit balance of $114.95 at the bank. As disclosed by the entry permit issued by the Chinese authorities the deceased went back to China frequently during the year prior to his death. It was recorded in the said entry permit that he took about a total of $14,000.00 back to China during his 6 visits between March 1983 and April 1984. As disclosed by the entries in his passbook the deceased only paid in a total of $5,000.00 into his savings accounts (by 2 entries) and withdrew a total of $4,500.00 (by 3 entries) between April 1983 and April 1984 leaving a credit balance of only $98.00. It is to be noted that the money was withdrawn within a short period after payment in.

7. Mr. Sceat for the Plaintiff submitted that a multiplier of 16 should be adopted. He urged me to accept the oral testimony as well as the documentary evidence adduced on behalf of the Plaintiff. I accept the evidence of the Plaintiff and Kwan Ching Kei as I find them to be truthful witnesses. I accept and find that the deceased earned $110.00 a day as a carpenter at the time of his death and would have made $170.00 a day at the time of hearings; and that a worker of his sort would normally work on the average 26 days a month. I also accept and find that the deceased contributed each month the sum of $500.00 to the Plaintiff and the sum of RMB1160.00 or HK$533.33 (at the average exchange rate of RMB￥30.00 to HK$100.00) to his mother and younger sister prior to his death. Despite the fact that the deceased brought a total of $14,000.00 back to China during the 12 months prior to his death there is no evidence to suggest the whole sum went to the dependants in China.

8. For the Plaintiff's claim under LARCO I accept that a multiplier of 16 for the lost years is appropriate. The deceased seldom paid in money into his savings account and what he paid in he took out shortly thereafter. He left a very small credit balance at the bank though he had $1,550.00 cash in the house when he died. The deceased does not appear to me to be in the habit of saving up his earnings in a bank. This is not surprising taking into account his young age. Despite having evidence on his earnings immediately prior to his death there is no evidence on his earnings for the 12 months preceding his death. In the premises it is indeed difficult to work out an accurate figure for his free-balance based on his actual earnings and expenditures. Assuming he earned the same rate of wages ($2,750.00 per month) for the 12 months preceding his death and an average saving of $140.00 per month ($1,550.00 + $98.00 ÷ 12), his personal expenditure per month would be about $1,577.00 ($2,750.00 - $500.00 - $533.00 - $140.00). His free-balance would be about 43%. In view of his small savings and evidence on his contributions to family, I find that the deceased was in the habit of spending quite a substantial portion of his earnings on himself and thus a free-balance of slightly less than the conventional figure of 55% is appropriate. I shall adopt a free-balance of 45%. In the premises the award under LARCO is :-

9. The Plaintiff and his wife's claimsunder FAO will merge with the LARCO claim as they are the beneficiaries under the deceased's estate upon his intestacy. The younger sister's FAO claim will survive. Taking into account that people in China do accept the government policy of late marriages and that the younger sister was aged 15 at the time of the deceased's death, a multiplier of 10 is appropriate for her dependency. In the premises, Luk Yim Fong's award under FAO is $533.00 ÷ 2 x 120 = $31,980.00.

10. The net award to be made in favour of the Plaintiff is $258,841.00 ($386,861.00 + $31,980.00 - $160,000.00). As Luk Yim Fong is a minor the sum of $31,980.00 is apportioned in her favour, such sum upon recovery from the Defendant is to be paid into Court and to be invested and/or otherwise dealt with by the Registrar of the Supreme Court at his discretion for the benefit of the said infant until she attains the age of majority with liberty to apply. There will be interest on the award for loss of expectation of life at 2% per annum from the date of issue of the writ. Interest on the funeral expenses and the pre-trial loss of earnings will run at the rate of 3.75% from the date of death. The Plaintiff will get the costs of the hearing with a certificate for counsel. Plaintiff's own costs to be taxed in accordance with legal aid regulations.