NG KOK CHING v. KWONG SING KIN

1980, NO. 3948

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On the 20th July 1978 the deceased SIU TAI KWONG was crossing King's Road, near its junction with Power Street, when he was knocked down by a car driven by the Defendant. He was admitted to hospital but died on the 27th July 1978 without having regained consciousness.

2. The writ in these proceedings was issued on the 17th July 1980. I propose briefly to look at the history of this matter as it becomes of importance in relation to submissions made by Mr Fan as to any award of interest. After issue of the writ the next step in the proceedings was taken on the 14th August 1980 when the Plaintiff's solicitors took out a notice of appointment of assessment of damages before a Master fixed for the 7th October 1980. The assessment was adjourned to a fresh date to be fixed. Apart from a hearsay notice filed by the Plaintiff on 24th February 1982 and a Counter-Notice filed by the Defendant on 7th March 1982 nothing further was done by the Plaintiff until a further appointment for assessment of damages was fixed for the 23rd September 1982. With the agreement of both parties that appointment was vacated and postponed to a further date to be fixed. Between then and 31st July 1984, the only two steps in the proceedings taken by the Plaintiff were to file a series of Hearsay notices in respect of which a number of Counter-Notices were served by the Defendant. On the 31st July 1984 a Summons taken out by the Plaintiff was heard by Master Betts dealing with the Hearsay notices and Counter-Notices. On the 8th August 1984 the Plaintiff finally took out a notice of appointment of assessment to damages which came before me on the 21st September 1984.

3. Three witnesses were called on behalf of the Plaintiff, a doctor who attended the deceased on his admission to hospital on 21st July 1978, the deceased's aunt and her husband who is the Plaintiff a in the present case. The Plaintiff submitted documentary evidence pursuant to the order of Master Betts dated 31st July 1984 on hearsay notices filed by the Plaintiff. The documents admitted were firstly a letter from the deceased's former employer, France Fashion Fur Co. and secondly a letter from the deceased's father.

4. The only evidence before me of the deceased's earnings came from the letter of the deceased's former employer France Fashion Fur Co. dated 4th April 1983. This letter stated his monthly salary to have been $1,400,00 with commission also given on a monthly basis. From January 1978 until June 1978 the monthly salary together with the commission for the same period gave an average monthly income of 53,400.00 per month. The letter went on to say that the deceased's salary would have been increased by "400.00 per month from September 1978 giving a basic monthly salary of $1,800.00 after the revision. There was no evidence as to the position which the deceased held in Frnace Fashion Fur Co. There was no evidence as to the deceased's outgoings other than the evidence of the Plaintiff that the deceased rented a room from a friend.

The Last Years

5. On the matter of the multiplier Mr Tang for the Plaintiff submitted that in the view of the deceased's age, 29 at the date of his death, the appropriate should be 15. Mr Fan for the defendant proposed 14 and I accept that. On the issue of the multiplicand Mr Tang for the Plaintiff submitted that I should accept the starting point as $3,400.00 per month, increase that by 10% p.a. until the date of assessment and then following the decision of the Court of Appeal of Yan Yut Shing 1983 HK Law Reports page 242 take the average of the earnings. From the average of the earnings would be deducted the expenses of the deceased.

6. Mr Fan for the defendant criticizes the paucity of the Plaintiff's evidence. First of all he says there was no indication in the written evidence of the deceased's former employer as to his status. Secondly the Plaintiff could and should have adduced evidence from persons employed in the same trade as to the movement of salary between the date of the deceased's death and, the date of assessment. Thirdly whilst Mr Fan does not contest Mr Tang's method of arriving at the multiplicand he considered that more appropriate figure would be 5% p.a. Mr Fan further argues that I should disregard the figure set out in the written statement statement from the deceased's former employer and substitute a much lower figure. I can, however, find no basis on which I can reject it and have therefore accepted it. I do however accept the two other Criticims Bade by Mr Fan. I can see no reason why the Plaintiff could not have adduced evidence from persons engaged in the same trade as the employer of the deceased showing wage movements. Nor can I see any justification for accepting the figure of 10% inflation. Certainly the Plaintiff has not attempted to support the figure of 10% by reference to any published statistics relating to wage movement. Doing the best I can in the circumstances I proposed to accept the figure of $3,400.00 per month as the deceased's average monthly earnings at the date of death, and to use a figure of 5% p.a. as an annual increase for inflation up to the date of Assessment. On this basis in September 1979 the deceased would have earned $3,990.00, in Sept ember 1980 $4190, in September 1981 $4399, in September 1982 $4619, in September 1983 $4850, 2 in September $5093.

7. I turn now to consider the question of the free-balance. There was evidence from the letter of the deceased's father to be effect that during the period from January to June 1978 the deceased sent him HK$2,000.00 per month. This amounted to nearly 60% of the deceased's salary. The evidence vans supported to a certain extent by the evidence of the Plaintiff Mr Ng Kok Ching who told me of a visit to the deceased's father in 1977 when he took US$2,000.00 from the deceased to his father. He told me that this represented several months contributions to the father, 6 to 7 months maintanence. I accept that the deceased was supporting his father and doing so to a substantial extent. Nevertheless the deceased had to support himself. I regard this figure of 60% as so high to be inflated and doing the best I can. I think it probable that he give 40% of his gross income to his father. Apart from the evidence of the Plaintiff that the deceased rented a flat from his friend there is a total absence of evidence as to how much money the deceased spent on himself. Mr Tang for the Plaintiff urges me not to regard the decisions in Wong Sai Chung and the Peter Zee case where the deceased person expenses were taken to be 45% of his income as a rule which the Court will invariably follow. He has referred me to other cases where the percentage adopted ranged from 15% to 33% to the income. I accept that the cases lay dorm no fixed rule as to the percentage of income which the person can be taken to have spent on his expenses, on the other hand in this case where there is no real evidence as to the level of expenditure it seems to me to be appropriate to use the figure of 45%,

8. The calculation is therefore as follows:

$3,400.00 + $5,093.00 = $8,493.00 divided by 2=$4,246.50

Personal expenses would be $4,246.50 x 45% = $1910.90

The multiplicand would therefore be $4,246.50 - $1910.90 = $2335.50 Pre-trial Loss of earnings would be $2335.50 x 74 months (six years and two months) = $172827.

9. For post trial loss the multiplicand will be $5,093.00 - ($5,093.00 x 55%)$2292 = $2801 which is to be multiplied by 96 months (7 years and ten months)= $268,896.00. The total award therefore for the lost years is pre-trial loss of $172,827.00 + post-trial was $268,896.00 = $441,723.00.

Pain and Suffering

10. Mr Tang argued that an award should be made for pain and suffering on the basis of the case of Rose v. Ford a decision of the House of Lords in 1937. The Plaintiff called Doctor So Shing Tso who said as follows, "Strictly speaking I don't think the deceased suffered any pain or suffering as he was unconscious throughout. If you define suffering as requiring the presence of a conscious mind then there is no suffering. All the physical signs of the deceased are reflexes." Accepting that evidence the matter in my view is put beyond doubt by the case of the Official Administrator v. Lau Man Hung 1969 HK Law Report of page 579 where Briggs J. says, "I do not think I should allow any sum for pain and suffering. There is no evidence that the deceased endured any pain. She was unconscious from the time of the accident until to her death. " I therefore make no award under this head.

Loss of Expectation of Life

11. Under this heading I make the conventional award of $20,000.00.

Special Damages

Summary

12. At the conclusion of the case Mr Fan for the defendant urged me not to make any award of interest on damages awarded in view of the long delay in bringing this matter on for trial. Mr Fan's submission can of course only relate to the items of special damage and pre-trial loss. Reference to section 48 of the Supreme Court Ordinance shows that a discretion is given to the Court on awarding interest between the date when the cause of action arose and the date of Judgment. Interest is awarded to a Plaintiff for being kept out of his money by the Defendant. A Defendant may always protect himself against orders in respect of interest and costs by making a payment into Court. In this case I am satisfied at the normal practice should apply. There will be interest on the general damages at the rate of 2% p.a. from a date of the Writ to Judgment and on the special damages at the rate of 7% p.a. from the date of the accident to judgment. There will be no interest on the assessment of loss of future earnings. There will he an order for payment of the Plaintiff's costs by the Defendant and a Certificate for Counsel.