NG SUI FAN AND ANOTHER v. EXCLUSIVE ENVIRONMENT SERVICES LTD

1988, No.A1893

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 12th. March, 1985, Yeung Kai Yang was killed  during the course of his employment, with the Defendant. At the time of the accident the deceased was 23 years of age.

2. The writ was issued in 11th March, 1988.

3. On 25th April, 1989, on the application of the Plaintiff, an Order was made that the question of damages be tried separately from the question of liability and as a preliminary issue and the Plaintiff be at liberty to proceed to assessment of damages before a Master.

4. On the hearing of this Assessment there was agreement between the parties on the following matters:-

(1) Special Damages, being funeral expenses, in the sum of $14,214.00.

(2)    Loss of expectation of life - $30,000.00.

(3)    That the multiplier be 16.

5. The issues to be decided by me related to the multiplicands to be used in assessing pre and. post-trial loss.

6. The Plaintiff called one witness, the widow Ng Sui Fan. I also had before me a statement of Estimated Earnings of the Deceased covering the period from 11th March, 1985 to 30th June, 1988 Prepared by the Defendant.

7. In this Assessment, there were two major problems. Firstly, the deceased told the widow very little about his work and. financial affairs. Secondly, the deceased had only worked for the Defendant for two weeks before his death and had taken a sharp drop in earnings in that job as compared with his Previous full-time occupation. Any figure reached as to damages is bound to depend to a large degree on making assumptions. Mr. Sakhrani urged that a commonsense approach should be used to resolve the difficulties.

8. I found the widow to be a truthful witness. She married the deceased in August, 1983 and had a boy on 10 November that rear. The deceased on as the sole breadwinner, there being no other source of income for the family than his earnings. The deceased was not able to save any money. The deceased cared very much for his wife and child and worked very long hours, having little social activity apart from playing snooker with his friends and taking his wife out for meals and to the cinema. The deceased spent about $6 a day on cigarettes and was neither a drinker nor gambler.

9. Prior to joining the Defendant, the deceased worked in a supermarket earning about, $3,000 per month. He worked long hours because deliveries had to be made in the evenings, and this was for 6 days per week. On his day off from his full-time job the deceased worked-as a kitchen worker, doing so about four times per month and earning about $150 each time.

10. The deceased gave his wife $2,200 each month. Out of that sum she paid the rent of $800 and all other household expenses. The deceased paid for meals be took outside the home, his cigarettes, snooker and other modest entertainment. The widow was able to account for every dollar of the $2,200 and said if she  needed more money in any month the deceased would give it to her.

11. In his new job with the Defendant, the deceased started at $1,800 pre month. The important question is how much per month would the deceased have been able to pay his wife thereafter. Mr Sakhrani asked me to assume that the deceased would have continued to give his wife $2,200, on the assumption that the deceased, due to his shorter working hours with Defendant, would have made up the shortfall in his new salary by working longer hours in his part-time job. The widow confirmed that the deceased vas still returning home late after joining the Defendant, saying he had been working in a kitchen, and had not mentioned anything about times heron harder in his new job. Miss Remedios asked me to base calculation of pre-trial loss solely upon the deceased's income from his job with the Defendant.

12. In my view, it is proper to assume that in taking a sharp cut in salary in his full time job, it was the deceased's intention to ensure that his contribution to his wife would not be cut and that be intended to achieve this by working longer hours in his part-time job until his salary with the Defendant had increased, as it would have done, to the extent where he did not need to work such long part-time hours.

13. As Miss Remedios pointed out, if I did decide this issue in favour of the Plaintiff, the figure of $2,200 is equivalent to a free balance of about 60%, which I consider entirely reasonable having regard to the deceased's frugal life-style.

14. It was the common approach of counsel that once the base figure was decided it should then be upgraded to the date of death by applying a percentage increase per annum based on the figures produced by defendant as to their estimate of how the deceased's salary would have increased. Counsel disagreed however, as to the percentage to be used. Miss Remedios asked that it be 13.79%, which was the salary increase between 1.4.1988 and 30.6.1988. Mr. Sakhrani asked that it be 17.29%, being the median figure of the lowest, 13.79%, and highest, 20.8%, of the three periods covered by the estimate. The third figure was 14.28%. I consider the proper course is to take the average of the three figures, which is 16.29%.

15. Increasing the sum of $2,00 by 16.29% for the four years to the deceased's death produces a free balance at that time of $4,023.

16. The median figure of $2,200 grid $4,023 is $3,111.

17. For the pre-trial loss I award damages of $164,883 (53 months x $3, 111).

18. In calculating the post-trial loss I use multiplicand of $4,023 and award damages of $559,197 ($4,023 x 139 months).

19. The summary of damages awarded is: -

20. Interest will be at 2% per annum on the damages loss of expectation of life from the date of writ to the date of this assessment.

21. Interest on the funeral expenses and pre-assessment loss will be at the rate of 4% from the date of death to the date the assessment.

22. The only beneficiaries being the widow and child, this award under LARCO will merge with any claim under FAO. I was not asked to consider the question of apportionment of the award.

23. Costs of the assessment will be to the Plaintiff, with certificate for counsel.

24. Dated this 14th day of July, 1989.