Chung Sze Mui v. Dragages et Travaux Publics and Penta-Ocean Construction Co. Ltd.

HCPI 590/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 590 OF 1999

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ASSESSMENT OF DAMAGES

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1. Shek Shing was one of six men who died on 6th June 1996 when the Rambler Channel Bridge on which they were working collapsed. This action is brought on behalf of the estate under LARCO and on behalf of the dependants under the Fatal Accidents Ordinance. Interlocutory judgment was entered on 21st December 1999, and the Notice of Appointment of Assessment Damages issued on 6th January 2000, with the date fixed for 30th May 2000.

2. At the assessment, Madam Chung Sze Mui's two witness statements were admitted into evidence.

3. Her husband was 58 at the time of the accident, having been born in 1938. He worked as a construction site worker for about 14-15 years, and joined VSL on 20th July 1982.

4. Madam Chung says that her husband's working hours were 8 am to 5 pm, and he worked overtime, coming home at about 7 pm or sometimes at 8 to 9 pm. He worked six days a week, resting on Sundays. He had four rest days per month. From time to time, he had to work on Sunday. He was pad on a monthly basis. He was entitled to overtime allowances, to a year-end bonus of one month's salary, and a diligence allowance. The diligence allowance amounted to several hundred dollars per month, but she does not know the exact amount. At the time of the accident, her husband's salary was about $10,000 odd. With overtime and diligence allowances he would earn $13,000. Salary was paid by auto pay to the Hong Kong Bank. He also had an account with the Standard Chartered, but there was only a small balance at the date of death.

5. At the time of the accident, she lived with her husband, her younger son and his wife and child, while her elder son and two daughters lived apart. She herself has never worked.

6. Her elder son, Shek Wah Chai, had a traffic accident on 8th March 1994. In the accident, he suffered a comminuted fracture of the pelvis, and he has not been able to work since. He received compensation of about $1 million for the injuries, but she is not able to asay whether he received one or two lots of compensation. He made no financial contribution to the family at the time of the accident or out of the compensation he received. She added that they all contribute together and spend together.

7. Her younger son, Shek Kim Fai, was working as an odd job worker at the time of the accident. He and his wife lived with her husband and herself at the time of the accident, and they had meals together. Her daughter in law did not work and Kim Fai only earned about $5,000 or $6,000 per month and could just manage on that. Kim Fai's son, Wing Hin, was maintained by her husband since birth on 30th June 1993 and she looked after him. At the time of the accident, Kim Fai work in transportation. Since he started working he has never given her money towards expenses, not even a cent. Originally, they lived on a 10 foot fishing boat, which they moored at Sai Kung, and Kim Fai helped them with chores and with fishing. They moved on to the land in about 1985 or 1986, and from that time until about 1992 when they got the Public Housing Unit, they lived in a house belonging to a friend who was very old, and they paid her $1,500 for it, but it was not paid as rent officially, they just gave her the money. They returned the fishing boat to the Government. Since 1985, Kai Fai has been a casual worker, sometimes on building sites. He is in normal health. Since 1985 to the date of the accident, he earned about $5,000 to $6,000 per month. He does not worked fixed days, sometimes he would work 5 days, sometimes 6, he did not work on Sundays. He earned around $200 per day. He was married in 1992 and his wife has never worked, she is still a teenager. His wife has never given her any money either. She agreed that her husband earned around $6,000 to $7,000 per month and Kim Fai earned $5,000 to $6,000 per month between 1992 and 1996, but Kim Fai never contributed. She herself now pays for the expenses for the grandchild and the rent. Kim Fai has not given her any money since the date of the accident. He is now divorced.

8. Her mother in law, Yuen Kiu, aged 76 at the time of the accident, has been living in an old-age home in Sai Kung since 1995. Her husband and his two siblings share the expenses for Yuen Kiu's care. These varied but it was about $4,900 per month, and her husband contributed $1,500. She is still paying this for her mother in law. Her mother in law is unable to eat and has to be fed by tube. The prognosis is not good, and she could pass away at any time, but she has been in this condition for about three years. About two months ago, the nursing staff told her that her mother in law's condition had deteriorated quite a lot.

9. Her husband paid her about $9,840 in cash and retained $3,000 for his own expenses. Out of this, she paid the $1,5000 for the care of her mother in law, and the balance was used for the monthly expenses of the family. Madam Chung set out in her statement a breakdown of the average expenses which totals $9,840. Her husband had no savings, they just managed to cover the living expenses. She said that the telephone charges were $80 per month, which was billed quarterly. The water bill is $150 per quarter, which is $50 per month. The electricity at $350 per month can vary by $20 or $30 more or less. Her winter bill is about $210 to $220 per month. The $3,6000 for food fed four adults and one child. The $1,300 for the grandson includes a fee of $700 for the kindergarten, medical expenses which cost $150 to $160 each consultation, she takes him to eat his breakfast which costs about $12. The $1,300 is a rough figure, it could be a little less, $100 less, it is her estimate. She gave the lawyer the information, her rough estimates. Her husband gave her the money when he was paid, and he gave her $9,840 every month. There is nothing listed under clothing, travelling and entertainment. The bill for water at page 361 of the bundle shows for the four months between 17/6/97 to 16/10/97 was $500, which is $125 per month. Since 1997 there were 3 adults and 2 children in the household compared to 4 adults and 1 child before the accident. Since the accident there has been an increase in the water charges and it could be that the grandson used a bit more water. The $150 bill for 1996 was quarterly.

10. Between 1995 to 1996 her younger son was out of a job for about two years in about 1986 to 1987. Sometimes he works few months and is then out of a job for a few months. Prior to the accident he was working quite steadily after a period of time out of a job. Her son was divorced just after the funeral of her husband.

11. Her younger son works 26 days per month now as a lorry attendant, delivering stationery and exercise books to schools, and he earns about $200 per day. She is not claiming dependency for the grandson just because of this action, her son never did pay for the expenses for his son. Her son only earns about $6,000 per month because he is illiterate with very little education, so there is not much choice for him in the labour market.

12. The funeral and burial expenses cost about $120,000. She had spent $170,847 on the funeral but she did not have receipts for the balance, and this figure did not include the cost of the tombstone or the burial plot. However, since her husband was a native villager - he is buried at Tai Tau Chau in Sai Kung - there was not charge for the burial plot. The tombstone costs about $23,000 to $24,000. The funeral was carried out in accordance with traditional customs with no religious rites being involved.

13. Shek Wah Wing (Shek Wah Chai changed his name since the accident) gave a witness statement which was in the bundle, but he was unable to attend for cross examination. The contents mainly relate to his knowledge of the kind of work his father undertook on the building site, but since there is no dispute relating to this issue, the statement adds little to the plaintiff's case, and I give no weight to it.

14. She now lives with her two sons and two grandsons. Wah Chai has not resumed worked and Kim Fai is still working in miscellaneous jobs. She maintains the two grandchildren.

15. Wing Hin was supported by her husband because Kim Fai did not work all the time and he could not afford to support the child.

DEPENDENCY CLAIM

Income at the date of the accident

16. There is a record of the deceased's earnings from June 1995 to May 1996, with the proposed wage scales effective from 1st January and 1st July 1996, 1st January and 1st July 1997 and 1st January and 1st July 1998.

17. The plaintiff submits that the starting point for the income at the date of the accident should be based on an average for the five months January to May 1996, while the defendant submits that it should be for the twelve months prior to the accident. In this regard, I accept the plaintiff's position. The plaintiff received a salary increase as at January 1996, and an average for the period after the increase would be the fair starting point. That figure comes to $8,112 per month on the basic salary and $1,784 per month for overtimes, plus $1,933 per month for allowances, being a total of $11,833. However, added to that should be a proportion of the year end bonus, which was $8,970 for 1995, which results in a figure $746 per month. There is the further item of $1,495 paid in January 1996 under the heading 'Mis/back pay & A.L.' In the absence of any evidence as to the period this covers, I am of the view that I should also divide this by 12 to produce a monthly figure of $125. This produces a total of $12,704 per month for earnings at the date of the accident.

Notional Income at the Date of the Assessment

18. I accept the plaintiff's calculation of a 22.5% increase in earnings based on the Labourer I figures between 1st January 1996 and the 1st July 1998, and this produces a notional income of $15,562 ($12,704 x 122.5%). These figures produce a median of $14,133.

19. These figures produce a median of $14,133 per month.

Household Expenses

20. The defendant rejected the contention that the grandson was a dependent. Counsel noted that the child's father was working and earning $5,000 to $6,000 per month and could support the child, and he put it to the plaintiff that the claim was made because of the common law action, and that it was an exaggerated claim. The plaintiff submitted that it was not my function to enter into a consideration of the behaviour of the family members or the social responsibility of a son towards his family members. The issue is whether the percentage is reasonable and probably having regard to a deceased being the sole financial support and being without any vice or wasteful habits.

21. The defendant submitted that the details of the family expenses were estimated rather than detailed and submitted that there should be a reject to percentage deduction of around 15%. The plaintiff submitted that it would be difficult to expect the plaintiff to recall the details of the family expenses and that I should not be overly concerned with the details. The figures do not include expenses for clothing, travelling, entertainment of other items of household expenses other than food. Counsel submitted that I should take a broad overview of the expenses. The plaintiff's evidence is that the deceased gave her $9,000 odd which she used for the keep of the household. Litton VP cautioned of the danger of treating assessments for pecuniary loss as a 'mere matter of mathematics' - Chan Pui Ki v. Leung On (1996) 2 HKLR 401 at 411. It has also been said that 'when estimates of spending are given, they are inevitably in round figures and inevitably will leave out incidental matters of expenditure which every person has in ordinary everyday life but may be difficult to justify or categorise on a simple basis.' - Rogers JA in Tang Mei Ying v. Lam Pak Chu (CACV 319 of 1999 at page 4). The court should stand back and view the overall picture.

22. The plaintiff suggests that I should adopt a conventional percentage of the income of the deceased as dependency, and referred to a quantification of the claim on the basis of 20% for the wife, 30% for the grandson and 11% for the mother. These percentages are reasonable and well within the normal pattern, taking into account the contribution to the mother. Such a conventional percentage approach finds authority in Harris v. Empress Motors (1984) 1 WLR 212 at 216 - 217, where it was said that where the family unit was husband and wife the conventional figure is 66% on the grounds that broadly speaking the net income was spent as to one third for the benefit of each and one third for their joint benefit. Where there were children then the figure would be 75%. In Ho Ping Lin v. Ho Shui On (1994) 2 HKLR 313 at 318 - 320, Deputy Judge Jones followed this authority and applied a percentage of 75% of notional median earnings.

23. However, in Tsang Mei Ying v. Lam Pak Chui (1999) 2 HKLRD 807 at 811, Seagroatt J. in considering the principles in relation to the assessment of dependency, approved the calculation of common items of dependency, but did not approve the use of a conventional percentage. He said that

'many items of dependency are common to the family whether there are children or not, and, if there are, when they leave home and the picture of dependency in other respects changes. The common items remain part of the dependency picture. Examples of these are rent, utilities (though these may vary according to exceptional use) and other fixed payments. Moreover as some dependants cease to be such, the dependency of those remaining in the household often increases. The modern practice is to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. These percentages tend to be used 'unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts' (per O'Connor LJ in Harris v. Empress Motors ... ... The flexibility of the approach and the need to have regard to the facts of the case and the evidence adduced in relation to dependency was illustrated by Beldam LJ in Owen v. Martin (1992) PIQR Q 151:

'No doubt there will be many claims under the Fatal Accidents Acts where parties agree that a conventional proportion is appropriate. I do not, of course, suggest that in arriving at the extent of the financial provision made by the deceased the court is bound to base its assessment precisely on the percentage of net earnings disclosed by sums spent for the benefit of dependants but the court is not entitled to cast aside altogether evidence which shows the proportion of the deceased's income actually spent for the dependants' benefit during his lifetime and to substitute a figure however conventional or appropriate in other cases.'

It is not appropriate to calculate dependency on a simple equal mathematical division amongst all dependants of the sum given by the husband to his wife for the upkeep of the family home, its outgoings, and the general necessities of life. This is a wholly artificial approach and is a practice to be deprecated. It is not conducive to a calculation which is fair to either party.'

24. The plaintiff showed some uncertainty about the telephone and water bills, as to whether they were quarterly or monthly accounts. The plaintiff has had no chance for education and may have shown some confusion about the bills, but I found her to be a truthful witness. She confirmed that the telephone bill was quarterly, so that the figure should be $80. The water bill before me covers a four month period, showing that approximately $100 per month for water, so that I think it appropriate to allow this as claimed at $150. The other expenses seem reasonable, particularly taking into account the fact that there are no figures for travel for instance. I accept the expenses for the grandchild Wing Hin. With the amendments, the figure comes to $9,680. I do not accept that there should be any overall percentage deduction on these figures. They are an estimated figure, but in my view there is nothing unreasonable about them, and I allow them as claimed in the sum of $9,680.

25. I allow the claim for dependency of the grandson. In fact, there may be little difference in the figures since if I were to disallow the grandson, the plaintiffs own dependency would be increased.

The Multipliers

26. The defendant submits that the deceased was 58 at the time of the accident and the multiplier should be 2 since he would have retired at 60. It would be expected that a man in a physically demanding job would not be able or willing to continue on after reaching 60.

27. The plaintiff submitted that the multiplier should be 5 for the deceased, his wife, his mother and his grandson. He referred me to the company records which show men aged up to 63 still employed by the defendant. The use of a common multiplier is consistent with the reasoning in Harris v. Empress Motors.

28. The adoption of an average multiplier of 5 is appropriate bearing in mind the general approach to assessing damages - Chan Pui Ki and Tsang Mei Ying - and the multipliers suggested are reasonable.

29. I am satisfied that the deceased would have continued to work until he was 65. There are several employees still employed in the same job now aged over 60, one of 63, and I do not doubt that the plaintiff would continued his employment until he was 65. The mother is alive but not in good health, with the plaintiff being told recently by the nursing staff that there was a deterioration in her condition. Given that evidence, the multiplier of 5 years for the mother, leaving one year to run from the assessment, seems entirely appropriate. I therefore accept the multiplier of 5 for the deceased, his wife and his grandson as suggested by the plaintiff.

30. In this regard I note the case of Corbett v. Barking Health Authority (1991) 2 QB 408 regarding the upward adjustment of the multiplier where there is a long delay and where there is the known fact of the dependant's survival up to the date of trial.

31. I accept the method of calculation of dependency made by the plaintiff, so that based on the figure of $12,704, the wife's dependency is $3,340 being 26.3%, the grandson's at $4,140 being 33%, and the mother's at $1,500, being 12%, a total of 71.3%, which is still within the parameters of Harris v. Empress Motors. I calculate the loss of dependency as follows:-

Earning at death: $12,704

Earning at date of assessment: $15,562 (i.e. $12,704 x 122.5%)

 

(1) Loss of dependency

Value of dependency:

 

Immediate family

$8,180 - ($1,300 + $500 + $500) - $1,200 = $4,680

Wife:	$4,680/2 + $500 = $2,840 + $500 = $3,340
	$3,340/$12,704 x 100% = 26.3%
Grandson:	$4,680/2 + $1,300 + $500 = $4,140
	$4,140/$12,704 x 100% = 33%

Others

Mother: $1,500/$12,704 x 100% = 12%

 

Pre-trial dependency

Median take-home income: ($12,704 + $15,562) / 2 = $14,133

Immediate family:

(a) Wife: $14,133 x 26.3% x 48 months = $178,415

(b) Grandson: $14,133 x 33% x 48 months = $223,867

(c) Mother: $14,133 x 12% x 48 months = $81,406

Total: $178,415 + $223,867 + $81,406 = $483,688

 

Post-trial dependency

Immediate family:

(a) Wife: $15,562 x 26.3% x (5 - 4) x 12 = $49,114

(b) Grandson: $15,562 x 33% x (5 - 4) x 12 = $61,626

(c) Mother: $15,562 x 12% x (5 - 4) x 12 = $22,409

Total: $49,114 + $61,626 + $22,409 = $133,149

The total dependency is $616,837 ($483,688 + $133,149)

Loss of Accumulation of Wealth

32. There is no claim for loss of accumulation of wealth in this case.

Bereavement

33. The claim for bereavement is not in dispute and I allow this at $70,000.

Funeral Expenses

34. There is clear authority that the expenses of the funeral meal are not allowed - Wong Sau Wah v. Leung Kam Cheuk (1982) HKC 333, Lee Ping Tim v. Wong Kin Foon (1978) HKLR 347, and Loong Cho Hing v. Yam Kit Ying (1987) 2 HKC 482.

35. It has been held that it was not unreasonable to hold a buddhist service - see Wong Sau Wah v. Leung Kam Cheuk.

36. Amounts have been allowed for the coffin, a tourist car hired for the funeral, a tomb stone, undertakers, a prieest and white cloth - see Lee Ping Tim v. Wong Kin Foon.

37. Reasonable expenses of burial of the dead were recoverable and the expenses for two different funeral ceremonies held with a substantial interval of time between them was allowed - see Loong Choi Hing v. Yam Kit Ying.

38. In Lau Tak Ling v. Ngan Guen Min (1998) 2 HKC 75, it was held that the expenses of burial ceremonies were recoverable if it was reasonable in all the circumstances to hold the ceremonies. The status, financial position of the deceased and of his family and also their religious belief had to be considered. In that case the Deputy Judge held that the ceremony performed must have accorded with customary rites and religion of the descendants of the deceased and thus the expenses were reasonable in the circumstances, save for several small items.

39. The costs of a resting place for the urn in the sum of $23,700 was allowed in Hung Oi Mui v. Lam Kwok Leung, HCPI 205/1998 (unreported).

40. In this case the funeral expenses are claimed at $117,847, and receipts were produced but the plaintiff says that tombstone costs about $22,000 to $23,000. As to the funeral expenses, I allow them save and except the item for mourning meals in the sum of $10,046, so that I allow the sum of $107,801 for the funeral meals. I accept that plaintiff's evidence as to the costs of a tombstone and I allow this at $22,500, which I accept as reasonable. There was no charge for the grave site. In total I allow $130,301 under this head of damages.

41. Although a high award, the circumstances of the death were tragic with considerable public interest. I am satisfied that in the circumstances it was important for the widow and family to have the comfort of a funeral incorporating the full religious and customary rites according to their beliefs.

Deduction

42. The employees compensation of $504,531.58 will be deducted from the damages.

Interest

43. I award interest at the full judgment rate on the bereavement award from the date of death to the date of judgment - Kong Yuk King v. Wong Yiu Wing (HCPI 713 of 1998)

44. I award interest on the loss of accumulation of wealth at judgment rate from the date of judgment until payment - Court of Appeal in Hsu Li Lun v. Incorporated Owners of Yuen Fat Building (2000) 2 HKC page 365.

45. I award interest at half the judgment rate on the pre-trial loss of dependency and on the funeral expenses from the date of the accident until the date of judgment.

46. Thereafter all damages to carry interest at the judgment rate until payment.

47. The award for post-trial loss of dependency does not attract interest.

48. I leave the parties to calculate the actual interest.

Costs

49. I make an order nisi that the plaintiff shall have the costs of the assessment, to be taxed if not agreed, with the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. The costs order to be made absolute after the expiration of 14 days from the handing down of the judgment.

Summary of the Damages